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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Third Point Reinsurance Ltd | NYSE:TPRE | NYSE | Common Stock |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 10.21 | 0 | 01:00:00 |
UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under §240.14a-12
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THIRD POINT REINSURANCE LTD.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the appropriate box):
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No fee required.
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o
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1
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Title of each class of securities to which transaction applies:
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(2
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Aggregate number of securities to which transaction applies:
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(3
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
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(4
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Proposed maximum aggregate value of transaction:
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(5
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Total fee paid:
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o
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Fee paid previously with preliminary materials.
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o
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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(1
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Amount Previously Paid:
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(2
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Form, Schedule or Registration Statement No.:
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(3
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Filing Party:
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(4
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Date Filed:
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1.
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To elect three Class II directors and one Class I director, to serve for terms expiring in 2021 and 2020, respectively, or until their respective office shall otherwise be vacated pursuant to the Company’s Bye-laws.
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2.
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To approve and adopt the amended and restated Bye-laws of the Company.
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3.
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To approve, by a non-binding advisory vote, the executive compensation payable to the Company’s named executive officers (as described in this Proxy Statement) (“Say on Pay”).
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4.
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To elect certain individuals as Designated Company Directors (as defined in this Proxy Statement) of certain of our non-U.S. subsidiaries, as required by our Bye-laws.
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5.
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To appoint Ernst & Young Ltd., an independent registered public accounting firm, as our independent auditor to serve until the Annual General Meeting to be held in
2019
, and to authorize our Board of Directors, acting by the Audit Committee, to determine the independent auditor’s remuneration.
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By Order of the Board of Directors,
/s/ Janice R. Weidenborner
Janice R. Weidenborner
Executive Vice President, Group General Counsel and Secretary
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A:
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We are providing these proxy materials to you in connection with the solicitation by the Board of Directors of Third Point Reinsurance Ltd. of proxies to be voted at the Company’s Annual General Meeting and at any adjournments or postponements thereof. Because you were a Third Point Reinsurance Ltd. shareholder as of the close of business on the Record Date, our Board of Directors has made this Proxy Statement and Proxy Card available to you on the Internet, in addition to delivering printed versions of this Proxy Statement and Proxy Card to certain shareholders by mail. This Proxy Statement provides notice of the Annual General Meeting, describes the seven proposals presented for shareholder action and includes information required to be disclosed to shareholders.
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Q:
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Why did I receive a Notice of Internet Availability of Proxy Materials in the mail instead of a printed set of proxy materials?
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Pursuant to rules adopted by the SEC, we are permitted to furnish our proxy materials over the internet to our shareholders by delivering a Notice of Internet Availability of Proxy Materials (“Notice”) in the mail. If you received a Notice by mail, you will not receive a printed copy of the proxy materials in the mail. Instead, the Notice instructs you on how to access and review the Proxy Statement and Annual Report over the internet at
www.envisionreports.com/TPRE
. The Notice also instructs you on how you may submit your proxy over the Internet. If you received a Notice by mail and would like to receive a printed copy of our Proxy materials, you should follow the instructions for requesting these materials contained in the Notice.
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If you are a shareholder of record, you may elect to receive future annual reports or Proxy Statements electronically by visiting
www-us.computershare.com/Investor
and sign up, or while voting via the Internet click the box to give your
consent. If you hold your shares in street name, you should contact your broker, bank or other nominee for information regarding electronic delivery of proxy materials.
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A:
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There are five proposals scheduled to be voted on at the Annual General Meeting:
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To elect three Class II directors and one Class I director, to serve for terms expiring in 2021 and 2020, respectively, or until their respective office shall otherwise be vacated pursuant to our Bye-laws;
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To approve and adopt the amended and restated Bye-laws of the Company;
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To approve, by a non-binding advisory vote, the executive compensation payable to the Company’s named executive officers as described in this Proxy Statement;
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To elect certain individuals as Designated Company Directors of certain of our non-U.S. subsidiaries, as required by our Bye-laws; and
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To appoint Ernst & Young Ltd., an independent registered public accounting firm, as our independent auditor to serve until the annual general meeting to be held in 2019 and to authorize our Board of Directors, acting by the Audit Committee, to determine the independent auditor’s remuneration.
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The Company’s Board of Directors recommends that you vote your shares:
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“FOR”
the election of each of the nominees to the Board of Directors;
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“
FOR”
the approval of the proposal to approve and adopt the amended and restated Bye-laws of the Company;
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“FOR”
the approval of the executive compensation payable to the Company’s named executive officers as disclosed in this Proxy Statement;
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“FOR”
the election of the Designated Company Directors;
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“FOR”
the appointment of Ernst & Young Ltd., an independent registered public accounting firm, as the Company’s independent auditor to serve until the annual general meeting to be held in
2019
, and to authorize our Board of Directors, acting by the Audit Committee, to determine the independent auditor’s remuneration.
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All shares owned by you as of the Record Date, which is the close of business on
March 7, 2018
, may be voted by you, subject to certain restrictions on “controlled shares” described under the heading “Will I be entitled to vote all of my shares at the Annual General Meeting?” below. You may cast one vote per common share that you held on the Record Date. These shares include shares that are:
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held directly in your name as the shareholder of record; and
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held for you as the beneficial owner through a broker, bank or other nominee.
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If your shares are treated as “controlled shares” (as determined pursuant to sections 957 and 958 of the Internal Revenue Code of 1986, as amended (the “Code”)) of any United States (“U.S.”) person (that owns shares directly or indirectly through non-U.S. entities) and such controlled shares constitute 9.5% or more of the votes conferred by our issued shares, the voting rights related to the controlled shares owned by such U.S. Person (as defined in our Bye-laws) will be limited, in the aggregate, to a voting power of less than 9.5%, under a formula specified in our Bye-laws. The formula is applied repeatedly until the voting power of all 9.5% shareholders (as defined in our Bye-laws) has been reduced to less than 9.5%. In addition, our Board of Directors may limit a shareholder’s voting rights when it deems it appropriate to do so to: (i) avoid the existence of any 9.5% shareholder; and (ii) avoid certain material adverse tax, legal or regulatory consequences to us, any of our subsidiaries or any direct or indirect shareholder or its affiliates. “Controlled shares” include, among other things, all shares that a U.S. Person is deemed to own directly, indirectly or constructively (within the meaning of section 958 of the Code). The amount of any reduction of votes that occurs by operation of the above limitations will generally be reallocated proportionately among our other shareholders whose shares were not “controlled shares” of the 9.5% shareholder so long as such reallocation does not cause any person to become a 9.5% shareholder. The applicability of the voting power reduction provisions to any particular shareholder depends on facts and circumstances that may be known only to the shareholder or related persons. Accordingly, we request that any holder of shares with reason to believe that they are a 9.5% shareholder, contact us promptly so that we may determine whether the voting power of such holder’s shares should be r
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Many of our shareholders hold their shares through a broker, bank or other nominee rather than directly in their own name. As summarized below, there are some differences between shares held of record and those owned beneficially.
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Shareholder of Record.
Shares held directly in your name as the shareholder of record may be voted in person at the Annual General Meeting. If you choose to vote your shares in person at the Annual General Meeting, please bring proof of identification, such as a driver’s license or passport. Even if you plan to attend the Annual General Meeting, the Company recommends that you vote your shares in advance as described below so that your vote will be counted if you later decide not to attend the Annual General Meeting.
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Attendance at the Annual General Meeting is limited to individuals who were shareholders as of the Record Date and admission will be on a first-come, first-served basis. Registration and seating will begin at
9:45 a.m.
,
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Whether you hold your shares directly as the shareholder of record or beneficially own your shares in street name, you may direct your vote without attending the Annual General Meeting by voting in one of the following manners:
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Internet
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Go to the website listed on your proxy card or voting instruction card and follow the instructions there. You will need the control number included on your proxy card or voting instruction form;
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Telephone
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Dial the number listed on your proxy card or your voting instruction form. You will need the control number included on your proxy card or voting instruction form; or
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Mail
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Complete and sign your proxy card or voting instruction card and mail it using the enclosed, prepaid envelope.
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A quorum is necessary to hold a valid Annual General Meeting.
At the Annual General Meeting two or more persons present in person throughout the meeting and representing in person or by proxy in excess of 50% of the total issued voting shares in the Company throughout the meeting shall form a quorum for the transaction of business, provided, however that no shareholder may participate in any general meeting during which that shareholder (or, if any shareholder is an entity, its representative) is physically present in the United States. Abstentions and broker non-votes are counted as present for determining whether a quorum exists. A broker non-vote occurs when an intermediary holding shares for a beneficial owner does not vote on a particular proposal because the intermediary does not have discretionary voting power for that particular proposal and has not received instructions from the beneficial owner.
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Shareholder of Record.
If you are a shareholder of record and you submit a signed proxy card or submit your proxy by telephone or the internet, but do not specify how you want to vote your shares on a particular proposal, then the proxy holders will vote your shares in accordance with the recommendations of the Board of Directors on all matters presented in this Proxy Statement. With respect to any other matters properly presented for a vote at the Annual General Meeting, the proxy holders will vote your shares in accordance with their best judgment.
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The appointment of Ernst & Young Ltd., an independent registered public accounting firm, as our independent auditor to serve until the annual general meeting to be held in
2019
, and the authorization of the Board of Directors, acting by the Audit Committee, to determine the independent auditor’s remuneration (Proposal No. 5) is a matter considered routine under applicable rules. A broker or other nominee may generally vote on routine matters, and therefore no broker non-votes are expected to exist in connection with Proposal No. 5. The election of directors, the approval of amendments to the Company’s Bye-laws, the advisory vote on executive compensation, and the election of the Designated Company Directors, (Proposal Nos. 1, 2, 3 , and 4) are matters considered non-routine under applicable rules. A broker, bank or other nominee cannot vote without instructions on non-routine matters, and therefore there may be broker non-votes on Proposal Nos.1, 2, 3 , and 4.
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Three Class II directors and one Class I director have been nominated for election at the Annual General Meeting to hold office until the
2021
and 2020 Annual General Meetings, respectively, or until their respective office shall otherwise be vacated pursuant to our Bye-laws (Proposal No. 1). Each director will be elected by a plurality of the votes cast in the election of directors at the Annual General Meeting, either in person or represented by properly authorized proxy. This means that the three nominees who receive the largest number of “for” votes cast will be elected as directors. Abstentions and broker non-votes will have no effect on this proposal.
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It means your shares are registered differently or are in more than one account. Please provide voting instructions for all proxy and voting instruction cards you receive.
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A representative of Computershare will tabulate the votes and act as the inspector of election.
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Yes. You may revoke your proxy or change your voting instructions at any time prior to the vote at the Annual General Meeting by:
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providing written notice to the Secretary of the Company;
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delivering a valid, later-dated proxy or a later-dated vote on the internet or by telephone; or
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attending the Annual General Meeting and voting in person.
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Third Point Reinsurance Ltd. will pay the entire cost of preparing, assembling, printing, mailing and distributing these proxy materials. In addition to the mailing of these proxy materials, the solicitation of proxies or votes may be made in person, by telephone or by electronic and facsimile transmission by our directors, officers and employees, who will not receive any additional compensation for such solicitation activities. In addition, the Company may reimburse its transfer agent, brokerage firms and other persons representing beneficial owners of Third Point Reinsurance Ltd.’s common shares for their expenses in forwarding solicitation material to such beneficial owners.
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Yes. The Company encourages shareholder participation in corporate governance by ensuring the confidentiality of shareholder votes. The Company has designated Computershare, the Company’s independent transfer agent and registrar, to receive and tabulate shareholder votes. Your vote on any particular proposal will be kept confidential and will not be disclosed to the Company or any of its officers or employees except: (i) where disclosure is required by applicable law, (ii) where disclosure of your vote is expressly requested by you; or (iii) where the Company concludes in good faith that a bona fide dispute exists as to the authenticity of one or more proxies, ballots or votes, or as to the accuracy of any tabulation of such proxies, ballots or votes. However, aggregate vote totals will be disclosed to the Company from time to time and publicly announced at the Annual General Meeting.
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A:
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Copies of the Company’s Annual Report on Form 10-K for the year ended December 31,
2017
, as filed with the SEC, are available to shareholders free of charge on Third Point Reinsurance Ltd.’s website at
http://www.thirdpointre.bm
or by writing to Third Point Reinsurance Ltd., Investor Relations, Point House, 3 Waterloo Lane, Pembroke HM 08, Bermuda or via email at investorrelations@thirdpointre.bm. The Company’s
2017
Annual Report to Shareholders, which includes such Form 10-K, accompanies this Proxy Statement.
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A:
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Third Point Reinsurance Ltd. will announce preliminary voting results at the Annual General Meeting and publish preliminary, or final results if available, in a Current Report on Form 8-K within four business days of the Annual General Meeting.
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Name
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Audit
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Compensation
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Executive
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Governance and Nominating
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Investment and Finance
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Underwriting
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Risk and Compliance
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J. Robert Bredahl
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ü
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ü
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ü
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Steven E. Fass
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ü
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Chairman
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ü
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ü
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ü
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Rafe de la Gueronniere
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ü
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Chairman
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ü
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Mary R. Hennessy
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ü
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ü
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Chairman
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Chairman
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ü
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Neil McConachie
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ü
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ü
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Chairman
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Mark Parkin
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Chairman
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ü
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ü
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ü
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Joshua L. Targoff*
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Chairman
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•
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the name and address of the shareholder who intends to make the nomination and the name and address of the person(s) to be nominated or the nature of the business to be proposed;
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a representation that the shareholder is a holder of record of our common shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person(s) or to introduce the business specified in the notice;
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if applicable, a description of all arrangements or understandings between the shareholder and each nominee and any other person(s), naming such person(s), pursuant to which the nomination is to be made by the shareholder;
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such other information regarding each nominee or each matter of business to be proposed by such shareholder as would be required to be included in a proxy statement filed under the SEC’s proxy rules if the nominee had been nominated, or intended to be nominated, or the matter had been proposed, or intended to be proposed, by the Board of Directors;
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if applicable, the consent of each nominee to serve as a director if elected; and
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such other information that the Board of Directors may request in its discretion.
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INDEPENDENT AUDITOR FEES
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Fee Category
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2017
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2016
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Audit Fees
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$
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1,811,863
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$
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1,831,746
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Audit-Related Fees
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217,010
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—
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Tax Fees
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78,844
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29,053
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All Other Fees
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2,325
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1,995
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Total Fees
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$
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2,110,042
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$
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1,862,794
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J. Robert Bredahl, who during 2017 served as President and Chief Operating Officer of the Company until February 28, 2017, and as President and Chief Executive Officer of the Company from March 1, 2017; Mr. Bredahl also served as Chief Executive Officer of Third Point Re BDA until August 2, 2017, and as Chief Executive Officer of Third Point Re USA since August 3, 2017.
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Nicholas J. D. Campbell, Chief Risk Officer of the Company; Executive Vice President, Underwriting Third Point Re BDA.
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Christopher S. Coleman, Chief Financial Officer of the Company.
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Manoj K. Gupta, Head of Investor Relations and Business Development of the Company; during 2017 Mr. Gupta also served as Executive Vice President of Third Point Re BDA USA from March 1, 2017 until August 2, 2017, and as President of Third Point Re USA from August 3, 2017.
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Daniel V. Malloy, who during 2017 served as Executive Vice President, Underwriting of Third Point Re BDA until and as Chief Executive Officer of Third Point Re BDA from August 3, 2017.
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Adoption of Stock Ownership Guidelines.
We have established stock ownership and retention guidelines that require our executive officers and directors to satisfy meaningful stock ownership requirements. These guidelines further align the interests of our executive officers and directors with those of our shareholders.
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Double-Trigger Equity Vesting.
Our long-term incentive awards granted in 2018 and future years will not vest or become payable in the event of a change in control unless there is an accompanying qualifying termination of the equity holder’s employment.
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Adoption of Clawback Policy.
We have adopted a clawback policy that authorizes our Compensation Committee to recover gains from bonuses and performance-based equity awards in the event of certain restatements of the Company’s financial results.
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Prohibition on Hedging and Pledging.
Our updated Trading Policy prohibits our employees and directors from engaging in hedging and pledging transactions.
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Allow the Company to attract and retain superior talent, as we believe that quality talent is integral to the Company’s ongoing success.
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Deliver pay opportunities through a format that is comparable with those used at other companies operating in the reinsurance industry; rewards should consist of base salary, an annual incentive plan, a long-term incentive opportunity, perquisites and retirement, health and welfare benefits.
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Support a high-performance environment by linking pay with performance to achieve the Company’s objective to grow the business and deliver superior returns to its investors, therefore having most executive pay contingent on the actual results achieved.
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Motivate superior performance and strengthen the connection between pay and results by developing compensation programs that reward success at the Company and on individual levels; the degree to which a person’s annual incentive award is influenced by individual (versus Company) performance is based on the person’s role and diminishes as he or she rises through the Company.
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Provide a competitive total compensation opportunity; our total cash compensation (base plus bonus) should reflect market compensation levels at the market median and total direct compensation (base, bonus, and long-term incentives) will target above the 50th percentile, assuming that the individuals and the Company perform well and deliver value to shareholders. (“Market” is defined as publicly traded insurance and reinsurance company groups with operations in Bermuda and the Cayman Islands.)
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Maintain an overall compensation target at market median with only specific individual salaries being above or below this target, as appropriate, based on experience, performance, criticality of the role, etc.
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Base eligibility for variable pay (annual as well as long-term incentives) largely on competitive norms with exceptions being made from time to time in specific circumstances or for high-potential key employees.
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Support a long-term focus for officers and key contributors that aligns with the interests of shareholders; the long-term award providing such focus should appropriately balance retention and alignment needs based on relative level in the organization.
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Encourage conversations about performance and development.
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Integrate compensation and reward systems with performance management and career development programs to ensure that employees know what it takes to be successful at the Company and to help align performance goals at every level.
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Provide market-competitive benefits and perquisites.
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Provide clear information about pay practices; by communicating openly about pay, we can ensure that everyone understands the rewards program and has the tools they need to implement it effectively.
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Base pay reflects sustained individual performance, contribution, and relative value, as well as competitive market practice.
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Base pay adjustments are neither guaranteed nor automatic. Base pay adjustments are intended to be clear performance messages and make meaningful distinctions for above-average performers.
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Below-average performers do not receive increases and are subject to corrective action.
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Average performers receive average or even below-average increases with consideration given to the incumbent’s position in the market or the established range.
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Above-average performers receive above-average increases with consideration given to the incumbent’s position in the market or established range for the role.
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Long-term incentives should help balance a short-term performance focus. Executives should be focused on fulfilling organizational long-term strategic objectives. By using long-term incentives, we encourage executives to balance their orientation and weight their decision making given the respective award opportunities under each compensation plan.
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Long-term incentive awards should reflect market-competitive levels. Individual grants will vary based on individual performance, so that executives are motivated to not only drive toward superior long-term corporate performance but also demonstrate individual impact as well.
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The mix of long-term incentives may vary by role/level in the Company to most appropriately balance retention needs with the need to drive long-term growth in shareholder value, based on the role/level’s ability to influence share price movement.
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The Company may use a variety of equity vehicles from year to year to deliver long-term incentives.
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Annual incentive pay plans help employees understand how they contribute to business performance and help unite employees behind shared goals. Additionally, annual incentives directly support the Company’s high-performance environment by providing employees with clear opportunities for performance-based rewards.
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Annual incentive pay helps focus employees on achieving the annual financial goals of the Company by paying rewards to the extent that goals are fulfilled. Performance metrics are set based on the measures the Compensation Committee determines are necessary to achieve operational success. The performance metrics are periodically reviewed and adjusted, where required, in the Compensation Committee’s judgment.
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The formula (described below) creates a bonus pool but not individual awards. The incentive bonus pool is allocated to individual employees by the Compensation Committee upon the recommendation of the Chief Executive Officer based on how each employee performed relative to his or her individual annual goals.
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Short-term incentives also recognize how individuals have performed in terms of meeting the specific goals established for the year, which are above and beyond their regular job duties. Individual performance below expectations will reduce the calculated payment, whereas exceptional performance will increase the calculated payment.
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Oversee all operations and business activities to ensure they produce the desired results and are consistent with the overall strategy of the company;
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Lead and motivate subordinates;
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Develop a high-quality business strategy that is aligned with short-term and long-term objectives;
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Assume the chief underwriting and key relationship management roles of the previous CEO.
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Originate and underwrite economically attractive deals;
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Develop new reinsurance structures and solutions that can be broadly applied to buyer of reinsurance;
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Supervise and mentor more junior staff and help them prioritize their efforts;
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Contribute to all strategic and important tactical decisions.
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Rationalize the U.S. office’s reinsurance portfolio by renegotiating pricing, terms and conditions, non-renewing poorly performing deals and focusing on new lines of business and segments;
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Successfully assume and perform duties and responsibilities as President of Third Point Re USA, overseeing all operations and business activities of U.S. operation;
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Lead and manage the investor relations and business development functions.
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Manage all aspects of the Company’s finance function;
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Support the underwriters by solving accounting, counter party credit and collateral issues related to reinsurance transactions;
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Manage the Company’s relationships with rating agencies and regulators;
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Contribute to all strategic and important tactical decisions.
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Provide quarterly, annual and ad hoc risk reporting as required by the various interested constituencies ;
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Continue to develop, refine and enhance the Company’s risk exposure capabilities with regard to identifying, assessing, monitoring and measuring our individual, specific and aggregate risk exposures;
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Source, underwrite and close profitable reinsurance transactions;
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•
|
Provide effective oversight of the company's IT function and capabilities, with particular focus on stability, redundancy and cyber-security.
|
•
|
Housing and Transportation Expenses
. The Company reimburses certain expatriate NEOs for housing expenses in Bermuda and for travel and transportation expenses between the United States and Bermuda. Our Chief Executive Officer is entitled to private air travel to and from Bermuda, and our other NEOs are eligible for private air travel to and from Bermuda when traveling with the Chief Executive Officer or prior to December 22, 2017, the Chairman; otherwise they are entitled to reimbursement for commercial air travel pursuant to the terms of the Company’s policies regarding travel. The Company’s policies also provide that our NEOs may invite family members or other guests from time to time to fly on already scheduled private air trips. In addition, the Company’s Chairman was entitled during his employment to private air travel to and from Bermuda pursuant to the terms of the Chairman Agreement.
|
•
|
Tax Expenses
. To the extent the Company’s reimbursement of an expatriate NEOs’ housing or travel expenses are deemed to be taxable income to the expatriate NEO, the Company reimburses the
|
•
|
Tax Preparation Expenses.
Due to the additional complexities associated with the taxation of expatriate NEO benefits, the Company reimburses expatriate executives’ tax preparation expenses, up to $5,000 per executive, per annum.
|
•
|
Club Membership.
The provision of a club membership is common practice in our industry and enables the NEOs to establish social networks with clients and others.
|
Required levels
|
CEO: 5x base salary
Other Executive Officers: 3x base salary
Directors: 3x annual cash retainer
|
|
|
Shares counted toward guidelines
|
Shares owned outright (excluding pledged shares)
Performance shares, once earned
Restricted shares, upon grant date
Intrinsic value of vested options (for executive officers)
|
|
|
Time period to achieve
|
Five years
|
|
|
Retention requirements
|
Must retain 50% of net shares issued upon exercise of share options or vesting of share awards until guidelines achieved
|
Name and Principal Position
(3)
|
|
Fiscal
Year
|
|
Salary
|
|
Bonus
|
|
Share Awards
(2)
|
|
Option
Awards
|
|
Non-Equity Incentive Plan Compensation
(1)
|
|
All Other
Compensation
(5)
|
|
Total
|
|
|
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
J. Robert Bredahl,
President and Chief Executive Officer of the Company; Chief Executive Officer of Third Point Reinsurance (USA) Ltd.
|
|
2017
|
|
800,000
|
|
—
|
|
749,995
|
|
—
|
|
3,360,000
|
|
373,354
|
|
5,283,349
|
|
2016
|
|
787,500
|
|
—
|
|
800,006
|
|
—
|
|
__
|
|
573,753
|
|
2,161,259
|
|
|
2015
|
|
750,000
|
|
375,000
|
|
799,992
|
|
—
|
|
—
|
|
608,025
|
|
2,533,017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nicholas J.D. Campbell, Chief Risk Officer; Executive Vice President, Underwriting Third Point Reinsurance Company Ltd.
|
|
2017
|
|
480,000
|
|
—
|
|
500,005
|
|
—
|
|
1,250,000
|
|
89,264
|
|
2,319,269
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Christopher S. Coleman,
Chief Financial Officer
|
|
2017
|
|
500,000
|
|
—
|
|
899,994
|
|
—
|
|
1,575,000
|
|
99,470
|
|
3,074,464
|
|
2016
|
|
480,000
|
|
—
|
|
500,004
|
|
—
|
|
—
|
|
116,735
|
|
1,096,739
|
|
|
2015
|
|
420,000
|
|
210,000
|
|
399,996
|
|
—
|
|
—
|
|
102,279
|
|
1,132,275
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Manoj K. Gupta,
Head of Investor Relations and Business Development of the Company; President of Third Point Reinsurance (USA) Ltd.
|
|
2017
|
|
500,000
|
|
—
|
|
550,000
|
|
—
|
|
1,575,000
|
|
54,708
|
|
2,679,708
|
|
2016
|
|
500,000
|
|
100,000
|
|
300,002
|
|
—
|
|
—
|
|
133,257
|
|
1,033,259
|
|
|
2015
|
|
500,000
|
|
250,000
|
|
299,992
|
|
—
|
|
—
|
|
452,652
|
|
1,502,644
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel V. Malloy,
Chief Executive Officer, Third Point Reinsurance Company Ltd.
|
|
2017
|
|
700,000
|
|
—
|
|
1,600,006
|
|
—
|
|
2,725,000
|
|
246,495
|
|
5,271,501
|
|
2016
|
|
700,000
|
|
—
|
|
600,005
|
|
—
|
|
—
|
|
283,175
|
|
1,583,180
|
|
|
2015
|
|
675,000
|
|
337,500
|
|
599,987
|
|
—
|
|
—
|
|
285,881
|
|
1,898,368
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John R. Berger,
Former Chairman of the Board of the Company; Former Chief Executive Officer of Third Point Reinsurance (USA) Ltd.
(4)
|
|
2017
|
|
831,474
|
|
—
|
|
749,995
|
|
—
|
|
3,710,000
|
|
336,669
|
|
5,628,139
|
|
2016
|
|
850,000
|
|
—
|
|
1,000,008
|
|
—
|
|
—
|
|
407,922
|
|
2,257,930
|
|
|
2015
|
|
850,000
|
|
425,000
|
|
999,998
|
|
—
|
|
—
|
|
603,745
|
|
2,878,743
|
(1)
|
For
2017
, the Company achieved an 18.1% return on equity threshold and therefore, bonuses were payable under our Annual Incentive Plan. See “Compensation Discussion and Analysis - Elements of our Executive Compensation Program - Annual Incentive Pay”.
|
(2)
|
See “Compensation Discussion and Analysis - Elements of our Executive Compensation Program - Long-Term Incentives”. Messrs. Bredahl, Campbell, Coleman, Gupta, Malloy and Berger were granted a total of 92,213, 61,475, 110,656, 67,623, 196,721 and 92,213 performance-based restricted shares at maximum performance levels in
2017
, respectively. Performance-based restricted share awards generally vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. The number of performance-based restricted shares that may be retained upon vesting will vary based on the level of achievement of the performance goals. The award value included in the table for
2017
corresponds to the grant date fair value of performance-based restricted shares based upon the probable outcome of such performance criteria. Assuming the maximum performance levels are achieved, the grant date fair value of performance-based restricted shares granted in
2017
would equal $1,124,999, $749,995, $1,350,003, $825,001, $2,399,996, and $1,124,999, for Messrs. Bredahl, Campbell, Coleman, Gupta, Malloy, and Berger respectively. The amounts reported in this column are valued based on the aggregate grant date fair value computed in accordance with FASB ASC Topic 718, modified to exclude the effect of estimated forfeitures. The fair value was determined using the methodology and assumptions set forth in Note 16, “Share-Based Compensation,” to the Audited Consolidated Financial Statements included in our Annual Report on Form 10-K for the year ended
December 31, 2017
, which are hereby incorporated herein by reference.
|
(3)
|
Reflects current titles. Please see “Compensation Discussion and Analysis - Overview” for principal positions of named executive officers during 2017.
|
(4)
|
Mr. Berger’s employment terminated on December 22, 2017.
|
(5)
|
The following table sets forth the compensation reflected in the “All Other Compensation” column for the fiscal year ended
December 31, 2017
.
|
Name
|
|
Company Contributions to Retirement Plans ($)
(a)
|
|
Company-Paid Transportation Expense ($)
(b)
|
|
Reimbursed Housing Expenses ($)
(c)
|
|
Tax Reimbursements ($)
(d)
|
|
Other
($)
(e)
|
|
Total Other Compensation ($)
|
J. Robert Bredahl
|
|
54,000
|
|
141,130
|
|
80,123
|
|
93,101
|
|
5,000
|
|
373,354
|
Nicholas J.D. Campbell
|
|
48,000
|
|
—
|
|
—
|
|
37,664
|
|
3,600
|
|
89,264
|
Christopher S. Coleman
|
|
50,000
|
|
—
|
|
—
|
|
47,470
|
|
2,000
|
|
99,470
|
Manoj K. Gupta
|
|
50,000
|
|
—
|
|
—
|
|
—
|
|
4,708
|
|
54,708
|
Daniel V. Malloy
|
|
54,000
|
|
27,321
|
|
104,024
|
|
56,150
|
|
5,000
|
|
246,495
|
John R. Berger
|
|
54,000
|
|
71,682
|
|
103,200
|
|
102,787
|
|
5,000
|
|
336,669
|
(a)
|
Represents Company contributions (employer and employee contributions paid by the Company) to retirement plans.
|
(b)
|
During 2017, through December 22, 2017 Mr. Berger was entitled to private air travel to and from Bermuda. As Chief Executive Officer, Mr. Bredahl is entitled to private air travel to and from Bermuda. In 2017, Mr. Malloy received reimbursement for certain commercial air travel to and from Bermuda. NEOs may also invite family members or other guests from time to time to fly on already scheduled private air trips. There is no incremental cost to the Company and therefore, there is no value included in these amounts for family or other guests. This total also includes ground transportation costs paid by the Company.
|
(c)
|
Messrs. Bredahl and Malloy are entitled to a housing allowance under the terms of their employment agreements. Mr. Berger was entitled to a housing allowance under his employment agreement and Chairman Agreement through his retirement from the Board on December 22, 2017. This represents cost of housing, utilities, including electricity and cable services, and furnishings paid or reimbursed by the Company.
|
(d)
|
Represents payment of the employee portion of Bermuda payroll taxes and social security insurance on behalf of certain Bermuda-based NEOs and reimbursement of all taxes incurred with respect to: (i) the housing allowance and related expenses, (ii) company-paid transportation benefits, (iii) the company-paid employee portion of Bermuda social insurance tax, (iv) tax preparation benefits, and (v) the tax reimbursement payments.
|
(e)
|
Represents the employee portion of reimbursed personal tax preparation cost for Messrs. Bredahl, Coleman, Gupta, Malloy and Berger and reimbursement of club membership for Mr. Campbell.
|
|
|
|
|
Estimated Future Payouts Under
Non-Equity Incentive Plan Awards
(1)
|
|
Estimated Future Payouts Under Equity Incentive Plan Awards
(2)
|
|
Grant Date Fair Value of Stock and Option Awards ($)
(3)
|
||||||||||||||
Name
|
|
Grant Date
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
Threshold
|
|
Target
|
|
Maximum
|
|
|
||||||
|
|
|
|
($)
|
|
($)
|
|
($)
|
|
(#)
|
|
(#)
|
|
(#)
|
|
|
||||||
J. Robert Bredahl
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Annual Incentive Plan
|
|
|
|
—
|
|
|
1,600,000
|
|
|
(4)
|
|
|
|
|
|
|
|
|
||||
Omnibus Incentive Plan
|
|
2/21/2017
|
|
|
|
|
|
|
|
—
|
|
|
61,475
|
|
|
92,213
|
|
|
749,995
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Nicholas J.D. Campbell
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Annual Incentive Plan
|
|
|
|
—
|
|
|
600,000
|
|
|
(4)
|
|
|
|
|
|
|
|
|
||||
Omnibus Incentive Plan
|
|
2/21/2017
|
|
|
|
|
|
|
|
—
|
|
|
40,984
|
|
|
61,475
|
|
|
500,005
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Christopher S. Coleman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Annual Incentive Plan
|
|
|
|
—
|
|
|
750,000
|
|
|
(4)
|
|
|
|
|
|
|
|
|
||||
Omnibus Incentive Plan
|
|
2/21/2017
|
|
|
|
|
|
|
|
—
|
|
|
73,770
|
|
|
110,656
|
|
|
899,994
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Manoj K. Gupta
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Annual Incentive Plan
|
|
|
|
—
|
|
|
750,000
|
|
|
(4)
|
|
|
|
|
|
|
|
|
||||
Omnibus Incentive Plan
|
|
2/21/2017
|
|
|
|
|
|
|
|
—
|
|
|
45,082
|
|
|
67,623
|
|
|
550,000
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Daniel V. Malloy
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Annual Incentive Plan
|
|
|
|
—
|
|
|
1,295,000
|
|
|
(4)
|
|
|
|
|
|
|
|
|
||||
Omnibus Incentive Plan
|
|
2/21/2017
|
|
|
|
|
|
|
|
—
|
|
|
131,148
|
|
|
196,721
|
|
|
1,600,006
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
John R. Berger
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Annual Incentive Plan
|
|
|
|
—
|
|
|
1,746,096
|
|
|
(4)
|
|
|
|
|
|
|
|
|
||||
Omnibus Incentive Plan
|
|
2/21/2017
|
|
|
|
|
|
|
|
—
|
|
|
61,475
|
|
|
92,213
|
|
|
749,995
|
|
(1)
|
A discussion of the
2017
annual cash incentives, including awards earned for
2017
and paid in March 2018 can be found under “Compensation Discussion and Analysis - Elements of our Executive Compensation Program - Annual Incentive Pay”.
|
(2)
|
Performance-based restricted share awards made pursuant to the Omnibus Incentive Plan for the 2017-2020 performance cycle and are scheduled to vest on March 1, 2020. Restricted share awards generally vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. Pursuant to the terms of the Chairman Agreement entered into with Mr. Berger on March 1, 2017, all of Mr. Berger’s unvested performance-based restricted share awards will continue to vest after his termination of service, subject to achievement of the applicable performance conditions. Performance-based restricted shares that do not vest at the end of the three-year period are forfeited. 0% of the awards vest unless performance exceeds the threshold performance level. Linear interpolation applies to determine the vesting percentage between threshold and target and between target and maximum performance levels. For a more detailed discussion of the 2017 performance-based restricted share awards, see “Compensation Discussion and Analysis - Elements of our Executive Compensation Program - Long-Term Incentives”.
|
(3)
|
The amounts reported in this column are valued based on the aggregate grant date fair value computed in accordance with FASB ASC Topic 718 based on the probable outcome of such performance criteria. The fair value was determined using the methodology and assumptions set forth in Note 16, “Share-Based Compensation,” to the Audited Consolidated Financial Statements included in our Annual Report on Form 10-K for the year ended
December 31, 2017
, which are hereby incorporated herein by reference.
|
(4)
|
None of our NEOs have a stated maximum annual cash incentive in their employment agreements; however, the Annual Incentive Plan contains a maximum bonus pool funding of 390% of salaries and our Annual Incentive Plan has a maximum individual award cash incentive limit of $5 million. The incentive bonus pool is allocated to individual employees by the Compensation Committee upon the recommendation of the Chief Executive Officer based on the individual’s position in the organization, seniority level, and how each employee performed relative to his or her individual annual goals, such allocations not to exceed $5 million. See “Compensation Discussion and Analysis - Elements of our Executive Compensation Program - Annual Incentive Pay”.
|
|
|
|
Option Awards
|
|
Stock Awards
|
||||||
Name
|
Number of Securities Underlying Unexercised Options (#) Exercisable
|
Number of Securities Underlying Unexercised Options (#) Unexercisable
(1)
|
Option Exercise Price ($)
|
Option Expiration Date
|
|
Number of Shares or Units of Shares that Have Not Vested (#)
|
Market Value of Shares or Units of Shares that Have Not Vested ($)
(2)
|
Equity Incentive Plan Awards: Number of Unearned Shares, Units, or Other Rights That Have Not Vested (#)
|
Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units, or Other Rights That Have Not Vested ($)
(2)
|
|
|
|
|
|
|
|
|
|
|
J. Robert Bredahl
|
1,325,582
|
—
|
10.00
|
1/26/2022
|
|
24,532
(3)
|
359,388
|
—
|
—
|
441,860
|
—
|
16.00
|
1/26/2022
|
|
—
|
—
|
70,176
(4)
|
1,028,078
|
|
441,860
|
—
|
20.00
|
1/26/2022
|
|
—
|
—
|
61,475
(5)
|
900,609
|
|
|
|
|
|
|
|
|
|
|
|
Nicholas J.D. Campbell
|
167,442
|
41,860
|
15.05
|
12/17/2023
|
|
3,066
(3)
|
44,919
|
|
|
55,814
|
13,953
|
21.05
|
12/17/2023
|
|
|
|
8,772
(4)
|
128,510
|
|
55,814
|
13,953
|
25.05
|
12/17/2023
|
|
|
|
40,984
(5)
|
600,416
|
|
|
|
|
|
|
|
|
|
|
|
Christopher S. Coleman
|
167,442
|
41,860
|
10.89
|
4/1/2023
|
|
12,266
(3)
|
179,694
|
—
|
—
|
55,814
|
13,953
|
16.89
|
4/1/2023
|
|
—
|
—
|
43,860
(4)
|
642,549
|
|
55,814
|
13,953
|
20.89
|
4/1/2023
|
|
—
|
—
|
73,770
(5)
|
1,080,731
|
|
|
|
|
|
|
|
|
|
|
|
Manoj K. Gupta
|
348,837
|
—
|
10.00
|
4/16/2022
|
|
9,199
(3)
|
134,769
|
—
|
—
|
116,279
|
—
|
16.00
|
4/16/2022
|
|
—
|
—
|
26,316
(4)
|
385,529
|
|
116,279
|
—
|
20.00
|
4/16/2022
|
|
—
|
—
|
45,082
(5)
|
660,451
|
|
|
|
|
|
|
|
|
|
|
|
Daniel V. Malloy
|
976,744
|
—
|
10.00
|
1/23/2022
|
|
18,399
(3)
|
269,544
|
—
|
—
|
325,581
|
—
|
16.00
|
1/23/2022
|
|
—
|
—
|
52,632
(4)
|
771,059
|
|
325,581
|
—
|
20.00
|
1/23/2022
|
|
—
|
—
|
131,148
(5)
|
1,921,318
|
|
|
|
|
|
|
|
|
|
|
|
John R. Berger
|
2,232,558
|
—
|
10.00
|
12/22/2021
|
|
30,665
(3)
|
449,239
|
—
|
—
|
744,186
|
—
|
16.00
|
12/22/2021
|
|
—
|
—
|
87,720
(4)
|
1,285,098
|
|
744,186
|
—
|
20.00
|
12/22/2021
|
|
—
|
—
|
61,475
(5)
|
900,609
|
(1)
|
The vesting of these options is subject to satisfaction of a service condition. The service condition will be on December 17, 2018 for Mr. Campbell and on April 1, 2018 for Mr. Coleman, subject to continued employment through such date.
|
|
|
(2)
|
Market value of the shares that have not vested is based on the $14.65, per share closing price of the common shares on the NYSE on December 31, 2017.
|
|
|
(3)
|
These equity awards vested on March 1, 2018 based on performance achieved as of December 31, 2017.
|
|
|
(4)
|
These performance-based equity awards are not eligible to vest until March 1, 2019. These performance-based awards generally vest based on continued employment through the vesting date (except with respect to Messrs. Berger and Bredahl) and the achievement of certain financial performance measures over a three-year period ending December 31, 2018. Performance-based restricted shares that do not vest at the end of the three-year period are forfeited. Performance-based share amounts reflected in the table above are based on achieving the target performance goals.
|
|
|
(5)
|
These performance-based equity awards are not eligible to vest until March 1, 2020. These performance-based awards generally vest based on continued employment through the vesting date (except with respect to Messrs. Berger and Bredahl) and the achievement of certain financial performance measures over a three-year period ending December 31, 2019. Performance-based restricted shares that do not vest at the end of the three-year period are forfeited. Performance-based share amounts reflected in the table above are based on achieving the target performance goals.
|
|
|
Option Awards
|
|
Share Awards
|
||||||||
Name
|
|
Number of Shares
Acquired on Exercise (#)
|
|
Value Realized on
Exercise ($)
|
|
Number of Shares
Acquired on Vesting (#)(1)
|
|
Value Realized on Vesting ($) (2)
|
||||
J. Robert Bredahl
|
|
—
|
|
|
—
|
|
|
29,739
|
|
|
370,251
|
|
Nicholas J. D. Campbell
|
|
—
|
|
|
—
|
|
|
3,718
|
|
|
46,289
|
|
Christopher S. Coleman
|
|
—
|
|
|
—
|
|
|
14,870
|
|
|
185,132
|
|
Manoj K. Gupta
|
|
—
|
|
|
—
|
|
|
11,152
|
|
|
138,842
|
|
Daniel V. Malloy
|
|
—
|
|
|
—
|
|
|
22,304
|
|
|
277,685
|
|
John R. Berger
|
|
—
|
|
|
—
|
|
|
37,174
|
|
|
462,816
|
|
(1)
|
Amounts reflect shares issued under our Omnibus Incentive Plan in connection with the vesting of equity-based awards on March 1, 2017.
|
(2)
|
The values reflected in this column were calculated by multiplying the number of shares that vested on March 1, 2017 by the closing price of $12.45 per Company share on the NYSE on the applicable vesting date.
|
Name
|
|
Termination of Employment due to Death/Disability ($)
|
|
Termination of Employment for Cause ($)
|
|
Termination of Employment Without Cause or for Good Reason ($)
|
|
Termination of Employment for Retirement at Retirement Age
(1)
|
|
Change in Control ($)
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|||||
J. Robert Bredahl
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash Payments
(2)
|
|
3,360,000
|
|
|
—
|
|
|
4,560,000
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Option Awards
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Performance-Based Restricted Share Awards
(4)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,333,672
|
|
Other Benefits
(5)
|
|
—
|
|
|
—
|
|
|
75,456
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Nicholas J. D. Campbell
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash Payments
(2)
|
|
1,250,000
|
|
|
—
|
|
|
1,490,000
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Option Awards
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Performance-Based Restricted Share Awards
(4)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
506,189
|
|
Other Benefits
(5)
|
|
—
|
|
|
—
|
|
|
19,571
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Christopher S. Coleman
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash Payments
(2)
|
|
1,575,000
|
|
|
—
|
|
|
2,325,000
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Option Awards
(3)
|
|
157,394
|
|
|
—
|
|
|
157,394
|
|
|
—
|
|
|
157,394
|
|
Acceleration of Vesting of Performance-Based Restricted Share Awards
(4)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,148,990
|
|
Other Benefits
(5)
|
|
—
|
|
|
—
|
|
|
70,028
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Manoj K. Gupta
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash Payments
(2)
|
|
1,575,000
|
|
|
—
|
|
|
2,325,000
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Option Awards
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Performance-Based Restricted Share Awards
(4)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
724,706
|
|
Other Benefits
(5)
|
|
—
|
|
|
—
|
|
|
50,766
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Daniel V. Malloy
|
|
|
|
|
|
|
|
|
|
|
|||||
Cash Payments
(2)
|
|
2,725,000
|
|
|
—
|
|
|
3,775,000
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Option Awards
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Acceleration of Vesting of Performance-Based Restricted Share Awards
(4)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,867,244
|
|
Other Benefits
(5)
|
|
—
|
|
|
—
|
|
|
71,828
|
|
|
—
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
None of the NEOs were eligible for retirement on
December 31, 2017
.
|
(2)
|
For NEOs, includes base salary continuation for the applicable severance period and prorated annual cash bonus, as applicable, as described below under “Severance Payments”. Because the assumed termination date is
December 31, 2017
, the full bonus amount is reflected.
|
(3)
|
Equals the excess, if any, of $
14.65
the closing price of our shares on the NYSE on
December 31, 2017
, over the exercise price of the accelerated options. Because the assumed termination date is
December 31, 2017
, in the event of a termination without cause or for good reason, there is no pro-ration and the full amount of options that vest on the second vesting date after termination, if any, are accelerated. See “Accelerated Vesting of Equity Awards on Certain Terminations of Employment or a Change in Control - Options” below.
|
(4)
|
No performance-based restricted shares vest upon termination of employment as of December 31, 2017. In the event of a change in control, assumes 43% of the outstanding target number of performance shares granted in 2015, 34% of the outstanding target number of performance shares granted in 2016 and 70% of the outstanding target number of performance shares granted in 2017 would vest, based on URR performance through December 31, 2017. The number of assumed vested shares have been multiplied by $
14.65
, the closing price on the NYSE of our shares on December 31, 2017. See “Accelerated Vesting of Equity Awards on Certain Terminations of Employment or a Change in Control-Performance-Based Restricted Shares” below.
|
(5)
|
Reflects the cost to us of continued participation in medical and life insurance benefits over the severance period. See “Severance Payments” below.
|
(6)
|
Equals the number of accelerated restricted shares multiplied by $
14.65
, the closing price on the NYSE of our shares on
December 31, 2017
. See “Accelerated Vesting of Equity Awards on Certain Terminations of Employment or a Change in Control-Service-Based Restricted Shares” below.
|
Name
|
|
Fees earned or paid in cash ($)
|
|
Restricted Share Awards
(1) (2)
($)
|
|
Option Awards ($)
|
|
Total ($)
|
|||
Steven E. Fass
|
|
125,000
|
|
|
125,000
|
|
|
—
|
(3)
|
250,000
|
|
Mary R. Hennessy
|
|
100,000
|
|
|
100,000
|
|
|
—
|
(4)
|
200,000
|
|
Rafe de la Gueronniere
|
|
100,000
|
|
|
100,000
|
|
|
—
|
|
200,000
|
|
Neil McConachie
|
|
5,479
|
|
(5)
|
—
|
|
|
—
|
|
5,479
|
|
Mark Parkin
|
|
117,500
|
|
|
117,500
|
|
|
—
|
|
235,000
|
|
Gary D. Walters (former Director)
|
|
34,042
|
|
(6)
|
—
|
|
|
—
|
|
34,042
|
|
(1)
|
The restricted shares were awarded to the independent directors on May 3, 2017 under our Omnibus Incentive Plan and vested on each of the following dates July 31, 2017, October 31, 2017, January 31, 2018 and April 30, 2018.
.
|
|
|
(2)
|
The amounts reported in this column are valued based on the aggregate grant date fair value computed in accordance with FASB ASC Topic 718, modified to exclude the effect of estimated forfeitures. The fair value was determined using the methodology and assumptions set forth in Note 16, “Share-Based Compensation,” to the Audited Consolidated Financial Statements included in our Annual Report on Form 10-K for the year ended December 31, 2017, which are hereby incorporated herein by reference.
|
|
|
(3)
|
As of December 31, 2017, Mr. Fass held vested and outstanding options to purchase 25,424 shares. Of these options, 15,254 had an exercise price of $10.00, 5,085 had an exercise price of $16.00 and 5,085 had an exercise price of $20.00.
|
|
|
(4)
|
As of December 31, 2017, Ms. Hennessy held vested and outstanding options to purchase 25,424 shares. Of these options, 15,254 had an exercise price of $10.00, 5,085 had an exercise price of $16.00 and 5,085 had an exercise price of $20.00.
|
|
|
(5)
|
Reflects pro-rated fees earned for December 12, 2017 to December 31, 2017.
|
|
|
(6)
|
Reflects pro-rated fees earned for January 1, 2017 to May 3, 2017.
|
•
|
salary received in fiscal year 2017
|
•
|
annual incentive payment received for performance in fiscal year 2017
|
•
|
grant date fair value of long term incentive awards granted in fiscal year 2017
|
•
|
Company-paid contributions to retirement plans made during fiscal year 2017
|
•
|
Company-paid personal tax preparation cost
|
•
|
Company-paid tax reimbursements during fiscal year 2017
|
•
|
Company-paid transportation and housing during fiscal year 2017
|
•
|
the thirteenth employee’s annual total compensation was $580,335; and
|
•
|
the annual total compensation of our CEO, as reported in the Summary Compensation Table included elsewhere in this Proxy Statement, was $5,283,349.
|
•
|
each person, or group of persons, who is known to beneficially own more than 5% of any class of the Company’s common shares based on information contained in Schedules 13G;
|
•
|
each of the Company’s directors;
|
•
|
each of the NEOs; and
|
•
|
all of the Company’s directors and executive officers as a group.
|
|
Shares Beneficially Owned
|
|||
Name and Address
|
Number of
Shares
|
Percentage
of Class
(1)
|
||
5% Shareholders
|
|
|
||
KIA TP Holdings, L.P.
(2)
|
12,312,368
|
|
11.89
|
%
|
KEP TP Holdings, L.P.
(2)
|
12,312,368
|
|
11.89
|
%
|
Daniel S. Loeb
(3)
|
9,681,451
|
|
9.35
|
%
|
BlackRock, Inc.
(4)
|
10,935,594
|
|
10.56
|
%
|
Vanguard Group Inc.
|
8,481,125
|
|
8.19
|
%
|
|
|
|
||
|
|
|
||
Directors and Named Executive Officers
|
|
|
|
|
John R. Berger
(5)
|
4,612,560
|
|
4.46
|
%
|
Steven E. Fass
(6)
|
168,627
|
|
*
|
|
Rafe de la Gueronniere
|
37,130
|
|
*
|
|
Mary R. Hennessy
(6)
|
62,554
|
|
*
|
|
Neil McConachie
|
61,854
|
|
*
|
|
Mark Parkin
|
43,628
|
|
*
|
|
Joshua L. Targoff
|
149,991
|
|
*
|
|
J. Robert Bredahl
(7)
|
3,308,692
|
|
3.20
|
%
|
Nicholas J.D. Campbell
(8)
|
392,515
|
|
*
|
|
Christopher S. Coleman
(9)
|
551,033
|
|
*
|
|
Manoj K. Gupta
(10)
|
748,271
|
|
*
|
|
Daniel V. Malloy III
(11)
|
2,157,336
|
|
2.08
|
%
|
All executive officers and directors as a group (16 individuals)
(12)
|
12,528,124
|
|
12.10
|
%
|
(1)
|
Based on an aggregate of
103,520,817
common shares (including restricted shares) issued and outstanding as of March 2, 2018.
|
(2)
|
The aggregate number of common shares beneficially owned includes 8,466,934 common shares held of record by KIA TP Holdings, L.P. (
“
KIA TP
”
) and 1,533,066 common shares held of record by KEP TP Holdings, L.P. (
“
KEP TP
”
). KIA TP and KEP TP also own warrants to purchase 1,957,867 and 354,501 common shares, respectively. The warrants are currently fully exercisable, and will expire on December 22, 2021. Kelso GP VIII (Cayman) Ltd. (
“
GP VIII LTD
”
) is the general partner of Kelso GP VIII (Cayman), L.P. (
“
GP VIII LP
”
, and, together with GP VIII LTD and KIA TP, the
“
KIA Entities
”
). GP VIII LP is the general partner of KIA TP. KEP VI (Cayman) GP Ltd. (
“
KEP VI GP LTD”, and, together with KEP TP, the
“
KEP Entities
”
) is the general partner of KEP TP. The KIA Entities and the KEP Entities, due to their common control, could be deemed to beneficially own each of the other’s securities. Each of the KIA Entities and the KEP Entities disclaims such beneficial ownership and this report shall not be deemed an admission of beneficial ownership of such securities for any purpose. Each of the KIA Entities, due to their common control, could be deemed to beneficially own each other’s securities. GP VIII LTD disclaims beneficial ownership of all of the securities owned of record, or deemed beneficially owned, by each of GP VIII LP and KIA TP, except to the extent of its pecuniary interest therein, and the inclusion of these securities in this report shall not be deemed an admission of beneficial ownership of all the reported securities for any purpose. GP VIII LP disclaims beneficial ownership of all of the securities owned of record, or deemed beneficially owned, by each of GP VIII LTD and KIA TP, except, in the case of KIA TP, to the extent of its pecuniary interest therein, and the inclusion of these securities in this report shall not be deemed an admission of beneficial ownership of all the reported securities for any purpose. KIA TP disclaims beneficial ownership of all of the securities owned of record, or deemed beneficially owned, by each of GP VIII LTD and GP VIII LP, and the inclusion of these securities in this report shall not be deemed an admission of beneficial ownership of all the reported securities for any purpose. Each of the KEP Entities, due to their common control, could be deemed to beneficially own each other’s securities. KEP VI GP LTD disclaims beneficial ownership of all of the securities owned of record, or deemed beneficially owned, by KEP TP, except to the extent of its pecuniary interest therein, and the inclusion of these securities in this report shall not be deemed an admission of beneficial ownership of all the reported securities for any purpose. KEP TP disclaims beneficial ownership of all of the securities owned of record, or deemed beneficially owned, by KEP VI GP LTD, and the inclusion of these securities in this report shall not be deemed an admission of beneficial ownership of all the reported securities for any purpose. Frank T. Nickell, Thomas R. Wall, IV, George E.
|
(3)
|
Of these shares, the 2010 Loeb Family Trust owns 300,000 common shares, Third Point Advisors LLC owns 1,000,000 common shares, Third Point Opportunities Master Fund L.P. owns 1,200,000 common shares and the 2011 Loeb Family GST Trust owns 5,916,175 common shares. Mr. Loeb has sole voting and dispositive power over the shares held by the 2010 Loeb Family Trust, Third Point Advisors LLC, the 2011 Loeb Family GST Trust and Third Point Opportunities Master Fund L.P. Mr. Loeb disclaims beneficial ownership of such common shares except to the extent of his pecuniary interest therein, if any. Mr. Loeb’s address is c/o Third Point, LLC, 390 Park Avenue, 18th Floor, New York, New York .
|
(4)
|
Amount indicated is based on a Schedule 13G filing on February 1, 2018 made by BlackRock, Inc. as of December 31, 2017.
|
(5)
|
Includes options to purchase
3,720,930
common shares and
167,838
common shares. Also includes
500,000
common shares held by JVC52, LLC which is a Delaware limited liability company. Mrs. Nathalie Berger, Mr. Berger’s wife, controls JVC52, LLC. Mr. Berger disclaims any beneficial ownership of these shares except to the extent of his pecuniary interests therein, if any. Includes
223,792
restricted shares granted under the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan that vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. The number of shares that may be retained upon vesting will vary based on the level of achievement of the performance goals. All
223,792
restricted shares would vest if the maximum performance level is achieved (
149,195
would vest at target and 0 at threshold).
|
(6)
|
Includes options to purchase
25,424
common shares.
|
(7)
|
Includes options to purchase
2,209,302
common shares and
194,270
common shares. Includes
357,620
restricted shares granted under the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan that vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. All
357,620
restricted shares would vest if the maximum performance level is achieved (
238,414
would vest at target and 0 at threshold). Also includes 547,500 of our common shares which are pledged as security; 200,000 of these common shares are held by the J. Robert Bredahl Irrevocable Insurance Trust. Mrs. Kimberly J. Bredahl, Mr. Bredahl’s wife, is the trustee of the J. Robert Bredahl Irrevocable Insurance Trust. Mr. Bredahl disclaims any beneficial ownership of these shares except to the extent of his pecuniary interest therein, if any.
|
(8)
|
Includes options to purchase
279,070
common shares and
6,784
common shares. Includes
106,661
restricted shares granted under the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan that vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. The number of shares that may be retained upon vesting will vary based on the level of achievement of the performance goals. All
106,661
restricted shares would vest if the maximum performance level is achieved (
71,108
would vest at target and 0 at threshold).
|
(9)
|
Includes options to purchase
279,070
common shares and
42,136
common shares. Includes
229,827
restricted shares granted under the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan that vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. The number of shares that may be retained upon vesting will vary based on the level of achievement of the performance goals. All
229,827
restricted shares would vest if the maximum performance level is achieved (
153,218
would vest at target and 0 at threshold). Also includes 9,000 common shares held by Mr. Coleman’s wife. Mr. Coleman disclaims beneficial ownership of the shares held by his wife,
|
(10)
|
Includes options to purchase
581,395
common shares and
17,074
common shares. Includes
149,802
restricted shares granted under the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan that vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. The number of shares that may be retained upon vesting will vary based on the level of achievement of the performance goals. All
149,802
restricted shares would vest if the maximum performance level is achieved (
99,868
would vest at target and 0 at threshold).
|
(11)
|
Includes options to purchase
1,627,906
common shares and
189,703
common shares. Includes
339,727
restricted shares granted under the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan that vest based on continued employment and the achievement of certain financial performance measures over a three-year performance period. The number of shares that may be retained upon vesting will vary based on the level of achievement of the performance goals. All
339,727
restricted shares would vest if the maximum performance level is achieved (
226,485
would vest at target and 0 at threshold). Also includes 171,304 of our common shares which are pledged as security
|
(12)
|
Consists of options to purchase
8,748,521
common shares and
3,779,603
common shares (including
1,629,991
restricted shares subject to vesting) that are held by such executive officers and directors as a group.
|
•
|
Composition of Investments
: At least 60% of the investment portfolio will be held in debt or equity securities (including swaps) of publicly traded companies (or their subsidiaries) and governments of the OECD high income countries, asset-backed securities, cash, cash equivalents and gold and other precious metals. Except with the prior written consent of the Investment and Finance Committee, none of the assets in the investment portfolio will be held in illiquid investments traditionally considered “venture capital” or private equity investments. In addition, no investments in third party managed funds or other investment vehicles will be made without the consent of the Investment and Finance Committee.
|
•
|
Concentration of Investments
: Other than cash, cash equivalents and United States government obligations, no single investment in the investment portfolio will constitute more than 15% of the portfolio.
|
•
|
Liquidity
: Assets will be invested in such fashion that Third Point Re BDA and Third Point Re USA have a reasonable expectation that it can meet any of its liabilities as they become due. We review the liquidity of the portfolio on a periodic basis.
|
•
|
Net Exposure Limits
: The net position (long positions less short positions) may not exceed 1.5 times net asset value for more than 10 trading days in any 30-trading day period.
|
•
|
a material violation of applicable law relating to Third Point LLC’s investment related business;
|
•
|
Third Point LLC’s fraud, gross negligence, willful misconduct or reckless disregard of its obligations under the Agreement;
|
•
|
a material breach by Third Point LLC of our investment guidelines or any other material breach of the Agreement, which, in either case, if such breach is reasonably capable of being cured, is not cured within a 15-day period;
|
•
|
a conviction or, a plea of guilty or nolo contendere to a felony or a crime affecting the investment related business of Third Point LLC by certain senior officers of Third Point LLC;
|
•
|
any act of fraud, material misappropriation, material dishonesty, embezzlement, or similar conduct relating to Third Point LLC’s investment related business; or
|
•
|
a formal administrative or other legal proceeding before the SEC, the CFTC, the FINRA, or any other U.S. or non-U.S. regulatory or self-regulatory organization against Third Point LLC; or certain key personnel which would likely have a material adverse effect on us.
|
|
2017
|
|
2016
|
|
2015
|
||||||
|
($ in thousands)
|
||||||||||
Management fees - Third Point LLC
|
$
|
36,733
|
|
|
$
|
7,110
|
|
|
$
|
6,362
|
|
Management fees - Founders
(1)
|
—
|
|
|
35,321
|
|
|
36,053
|
|
|||
Performance fees - Third Point Advisors LLC (before loss carryforward)
|
93,978
|
|
|
17,276
|
|
|
7,061
|
|
|||
Performance fees - loss carryforward
|
—
|
|
|
—
|
|
|
(6,199
|
)
|
|||
|
$
|
130,711
|
|
|
$
|
59,707
|
|
|
$
|
43,277
|
|
|
|
|
|
|
|
Subsidiary
|
|
Designated Company Directors
|
Third Point Reinsurance Company Ltd.
|
|
Christopher S. Coleman Daniel V. Malloy
Janice R. Weidenborner
|
Third Point Re Marketing (UK) Limited
|
|
J. Robert Bredahl
Clare Himmer Christopher S. Coleman
|
Third Point Re (UK) Holdings Ltd.
|
|
Christopher S. Coleman
J. Robert Bredahl
|
3.
|
Permitting the Board of Directors to fill vacancies on the Board as a result of an increase in the size of the Board (Proposed Revised Bye-law 45.2)
|
|
|
1.
|
Definitions
|
1.1
|
In these Bye-laws, the following words and expressions shall, where not inconsistent with the context, have the following meanings, respectively:
|
9.5% Shareholder
|
a U.S. Person that (a) owns (within the meaning of Section 958(a) of the Code) any shares and (b) owns, is deemed to own, or constructively owns Controlled Shares which confer votes in excess of 9.5% of the votes conferred by all of the issued and outstanding shares;
|
Act
|
the Companies Act 1981 as amended from time to time;
|
Affiliate
|
with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.
|
Alternate Director
|
an alternate director appointed in accordance with these Bye-laws;
|
Auditor
|
includes an individual or partnership;
|
Board
|
the board of directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the directors present at a meeting of directors at which there is a quorum;
|
Book Value
|
as of any date of determination, the fully diluted tangible book value per share of the Company, as reflected on the then most recent quarterly consolidated balance sheet of the Company and its consolidated subsidiaries, prepared in accordance with U.S. generally accepted accounting principles; provided that the Board shall have the authority to determine Book Value with reference to a then more recent balance sheet of the Company prepared in accordance with U.S. generally accepted accounting principles;
|
Code
|
The Internal Revenue Code of 1986, as amended, of the United States of America;
|
Company
|
Third Point Reinsurance Ltd., the company for which these Bye-laws are approved and confirmed;
|
Company Sale
|
the sale of all or substantially all of the issued and outstanding Shares of the Company and/or TP Re.
|
Controlled Group
|
with respect to any person, all shares directly owned by such person and all shares directly owned by each other Member any of whose shares are included in the Controlled Shares of such person;
|
Controlled Shares
|
in reference to any person, all shares that such person is deemed to own directly, indirectly (within the meaning of Section 958(a) of the Code) or, in the case of any U.S. Person, constructively (within the meaning of Section 958(b) of the Code);
|
Daily Share Price
|
with respect to the shares of the Company as of any Trading Day, the closing price of the shares of the Company on the New York Stock Exchange (or such other principal stock exchange or automated quotation system on which the shares of the Company are then traded) on such Trading Day;
|
Director
|
a director of the Company and shall include an Alternate Director;
|
Disinterested Board Members
|
Directors, other than Daniel S. Loeb or any other Director affiliated with or employed by the Sponsor or its Affiliates;
|
Effective Date
|
the first date on which Kelso (as defined in Bye-law 7.1) and their affiliates, Pine Brook (as defined in Bye-law 7.1) and their affiliates, and Daniel S. Loeb and his affiliates (collectively, “Daniel S. Loeb”), taken together, no longer beneficially own more than 35% of the voting power of the Company;
|
Fair Market Value
|
with respect to a repurchase of any shares of the Company in accordance with these Bye-laws, (i) if such shares are listed on a securities exchange (or quoted in a securities quotation system), the average closing sale price of such shares on such exchange (or in such quotation system), or, if such shares are listed on (or quoted in) more than one exchange (or quotation system), the average closing sale price of the shares on the principal securities exchange (or quotation system) on which such shares are then traded, or, if such shares are not then listed on a securities exchange (or quotation system) but are traded in the over-the-counter market, the average of the latest bid and asked quotations for such shares in such market, in each case for the last five trading days immediately preceding the day on which notice of the repurchase of such shares is sent pursuant to these Bye-laws or (ii) if no such closing sales prices or quotations are available because such shares are not publicly traded or otherwise, the fair value of such shares as determined by one independent nationally recognised investment banking firm chosen by the Board and reasonably satisfactory to the Member whose shares are to be so repurchased by the Company,
provided
, that the calculation of the Fair Market Value of the shares made by such appointed investment banking firm (i) shall not include any discount relating to the absence of a public trading market for, or any transfer restrictions on, such shares, and (ii) such calculation shall be final and the fees and expenses stemming from such calculation shall be borne by the Company or its assignee, as the case may be;
|
Initial Public Offering
|
the first registered public offering of any class of common shares of the Company or TP Re under the United States securities laws or any amalgamation, scheme of arrangement or consolidation as a result of which the Members receive, as the consideration in such amalgamation, scheme of arrangement or consolidation, equity securities of a class that (i) has been registered as part of a public offering under the United States securities laws and (ii) is publicly traded on the New York Stock Exchange (or such other principal stock exchange or automated quotation system on which the shares of the Company or TP Re are then traded);
|
Investment Manager
|
the Person appointed to manage the assets of TP Re pursuant to an investment management agreement;
|
Member
|
a person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons, as the context so requires;
|
Notice
|
written notice as further provided in these Bye-laws unless otherwise specifically stated;
|
Officer
|
any person appointed by the Board to hold an office in the Company;
|
Person
|
any individual, corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization, governmental authority or other entity of any kind;
|
Qualified Initial Public Offering
|
(i) a registered public offering or registered public offerings on a national securities exchange of any class of common shares of the Company or TP Re under the United States securities laws, or (ii) any amalgamation, scheme of arrangement or consolidation as a result of which the Members receive, as the consideration in such amalgamation, scheme of arrangement or consolidation, equity securities of a class that (a) has been registered as part of a public offering under the United States securities laws and (b) is publicly traded on a national securities exchange, in either of case (i) or (ii), immediately following which the Company and TP Re together shall have received no less than U.S. $150,000,000;
|
Register of Directors and Officers
|
the register of directors and officers referred to in these Bye-laws;
|
Register of Members
|
the register of members referred to in these Bye-laws;
|
Regulatory Authority
|
any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization;
|
Resident Representative
|
any person appointed to act as resident representative and includes any deputy or assistant resident representative;
|
Secretary
|
the person appointed to perform any or all of the duties of secretary of the Company and includes any deputy or assistant secretary and any person appointed by the Board to perform any of the duties of the Secretary;
|
Shares
|
shall be deemed to include the authorized shares of the Company, and other common shares of the Company and any options, warrants or securities exercisable for, or convertible or redeemable into, common shares of the Company;
|
Sponsor
|
Third Point LLC;
|
Subsidiary
|
with respect to any Person, means a company, more than fifty percent (50%) (or, in the case of a wholly owned subsidiary, one hundred percent (100%)) of the outstanding voting shares of which are owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person, or any such Person and one or more other Subsidiaries;
|
TP Re
|
Third Point Reinsurance Company Ltd.;
|
Trading Day
|
any day on which the New York Stock Exchange (or such other principal stock exchange or automated quotation system on which the shares of the Company are then traded) is open for trading in securities listed thereon;
|
Treasury Share
|
a share of the Company that was or is treated as having been acquired and held by the Company and has been held continuously by the Company since it was so acquired and has not been cancelled;
|
United States
|
the United States of America and its dependent territories or any part thereof;
|
U.S. Person
|
a “United States person” as defined in Section 957(c) of the Code; and
|
1.2
|
In these Bye-laws, where not inconsistent with the context:
|
(a)
|
words denoting the plural number include the singular number and vice versa;
|
(b)
|
words denoting the masculine gender include the feminine and neuter genders;
|
(c)
|
words importing persons include companies, associations or bodies of persons whether corporate or not;
|
(d)
|
the words:
|
(i)
|
"may" shall be construed as permissive; and
|
(ii)
|
"shall" shall be construed as imperative; and
|
(e)
|
a reference to statutory provision shall be deemed to include any amendment or re-enactment thereof;
|
(f)
|
the word “corporation” means a corporation whether or not a company within the meaning of the Act;
|
(g)
|
unless otherwise provided herein, words or expressions defined in the Act shall bear the same meaning in these Bye-laws.
|
1.3
|
In these Bye-laws expressions referring to writing or its cognates shall, unless the contrary intention appears, include facsimile, printing, lithography, photography, electronic mail and other modes of representing words in visible form.
|
1.4
|
Headings used in these Bye-laws are for convenience only and are not to be used or relied upon in the construction hereof.
|
2.
|
Power to Issue Shares
|
2.1
|
Subject to these Bye-laws and to any resolution of the Members to the contrary, and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, the Board shall have the power to issue any unissued shares on such terms and conditions as it may determine and any shares or class of shares may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital, or otherwise as the Company may by resolution of the Members prescribe.
|
2.2
|
Subject to the Act, any preference shares may be issued or converted into shares that (at a determinable date or at the option of the Company or the holder) are liable to be redeemed on such terms and in such manner as may be determined by the Board (before the issue or conversion).
|
3.
|
Power and Obligation of the Company to Purchase its Shares
|
3.1
|
The Company may purchase its own shares for cancellation or acquire them as Treasury Shares in accordance with the Act on such terms as the Board shall think fit.
|
3.2
|
The Board may exercise all the powers of the Company to purchase or acquire all or any part of its own shares in accordance with the Act.
|
3.3
|
If at any time following the first anniversary of an Initial Public Offering, the average of the Daily Share Price for each Trading Day in the then most recent 12 month period is 90% or less of the Book Value, then the
|
3.4
|
No repurchase offer pursuant to Bye-law 3.3 shall be required if such repurchase does not comply with the Act or would result in (i) an adverse ratings action against the Company or TP Re by A.M. Best & Company, or (ii) any adverse action against the Company or TP Re by any Regulatory Authority.
|
3.5
|
Subject to the Act, if the Board in its sole discretion determines that ownership of shares of the Company by any Person may result in adverse tax consequences or materially adverse legal or regulatory treatment to the Company, any Subsidiary of the Company or any other Person (including if such consequence arises as a result of any U.S. Person owning Controlled Shares of 9.5% or more of the value of the Company or the voting shares of the Company after giving effect to any adjustment to voting power required by Bye-law 5), the Company will have the option, but not the obligation, to purchase all or part of the shares of the Company held by such Person to the extent the Board, in the reasonable exercise of its discretion, determines it is necessary to avoid or cure such adverse consequences) for immediately available funds in an amount equal to the Fair Market Value of such shares on the business day immediately prior to the date the Company sends the Repurchase Notice referred to below (the “Repurchase Price”);
provided
, that the Board will use reasonable efforts to exercise this option equally among similarly situated Persons (to the extent possible under the circumstances). In the event that the Company determines to purchase any such shares, the Company will be entitled to assign its purchase right to a third party or parties, including one or more of the other Persons, with the consent of such assignee. Each Person shall be bound by the determination by the Company to purchase or assign its right to purchase such Person’s shares and, if so required by the Company, shall sell the number of shares of the Company that the Company requires it to sell.
|
3.6
|
In the event that the Company or its assignee(s) determines to purchase any such shares, the Company shall provide each Member concerned with written notice of such determination (a “Repurchase Notice”) at least seven (7) calendar days prior to such purchase or such shorter period as each such Member may authorise, specifying the date on which any such shares are to be purchased and the Repurchase Price. The Company may revoke the Repurchase Notice at any time before it (or its assignee(s)) pays for the shares. Neither the Company nor its assignee(s) shall be obligated to give general notice to any Person of any intention to purchase or the conclusion of any purchase of shares of the Company. The closing of any such purchase of shares of the Company shall be no less than seven (7) calendar days after receipt of the Repurchase Notice by the Member, unless such Member agrees to a shorter period, and payment of the Repurchase Price by the Company or its assignee(s) shall be by wire transfer or certified check.
|
3.7
|
If the Company purchases any shares pursuant to Bye-laws 3.5 and 3.6, it shall do so only in a manner that the Board believes would not result, upon consummation of such transaction, in any U.S. Person owning Controlled Shares of 9.5% or more of the value of the Company or the voting shares of the Company (after giving effect to any adjustment to voting power required by Bye-law 5). Notwithstanding the foregoing, the Board, in its sole discretion and by unanimous consent of all of the Directors then in office, may waive the provisions of Bye-laws 3.5 and 3.6.
|
4.
|
Rights Attaching to Shares
|
4.1
|
At the date these Bye-laws are adopted, the share capital of the Company is divided into two classes: (i) common shares (the “Common Shares”) and (ii) preference shares (the “Preference Shares”).
|
4.2
|
The holders of the Common Shares shall, subject to these Bye-laws (including, without limitation, the rights attaching to Preference Shares):
|
(a)
|
be entitled to one vote per share;
|
(b)
|
be entitled to such dividends as the Board may from time to time declare;
|
(c)
|
in the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purpose of a reorganisation or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and
|
(d)
|
generally be entitled to enjoy all of the rights attaching to shares.
|
4.3
|
The Board is authorised to provide for the issuance of the Preference Shares in one or more series, and to establish from time to time the number of shares to be included in each such series, and to establish from time to time the number of shares to be included in each series, and to fix the terms, including designation, powers, preferences, rights, qualifications, limitations and restrictions of the shares of each such series (and, for the avoidance of doubt, such matters and the issuance of such Preference Shares shall not be deemed to vary the rights attached to the Common Shares or, subject to the terms of any other series of Preference Shares, to vary the rights attached to any other series of Preference Shares). The authority of the Board with respect to each series shall include, but not be limited to, determination of the following:
|
(a)
|
the number of shares constituting that series and the distinctive designation of that series;
|
(b)
|
the dividend rate on the shares of that series, whether dividends shall be cumulative and, if so, from which date or dates, and the relative rights of priority, if any, of the payment of dividends on shares of that series;
|
(c)
|
whether the series shall have voting rights, in addition to the voting rights provided by law and, if so, the terms of such voting rights;
|
(d)
|
whether the series shall have conversion or exchange privileges (including, without limitation, conversion into Common Shares) and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board shall determine;
|
(e)
|
whether or not the shares of that series shall be redeemable or repurchaseable and, if so, the terms and conditions of such redemption or repurchase, including the manner of selecting shares for redemption or repurchase if less than all shares are to be redeemed or repurchased, the date or dates upon or after which they shall be redeemable or repurchaseable, and the amount per share payable in case of redemption or repurchase, which amount may vary under different conditions and at different redemption or repurchase dates;
|
(f)
|
whether that series shall have a sinking fund for the redemption or repurchase of shares of that series and, if so, the terms and amount of such sinking fund;
|
(g)
|
the right of the shares of that series to the benefit of conditions and restrictions upon the creation of indebtedness of the Company or any Subsidiary, upon the issue of any additional shares (including additional shares of such series or any other series) and upon the payment of dividends or the making of other distributions on, and the purchase, redemption or other acquisition by the Company or any Subsidiary of any issued shares of the Company;
|
(h)
|
the rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Company, and the relative rights of priority, if any, of payment in respect of shares of that series; and
|
(i)
|
any other relative participating, optional or other special rights, qualifications, limitations or restrictions of that series.
|
4.4
|
Any Preference Shares of any series which have been redeemed (whether through the operation of a sinking fund or otherwise) or which, if convertible or exchangeable, have been converted into or exchanged for shares of any other class or classes shall have the status of authorised and unissued Preference Shares of the same series and may be reissued as a part of the series of which they were originally a part or may be reclassified and reissued as part of a new series of Preference Shares to be created by resolution or resolutions of the Board or as part of any other series of Preference Shares, all subject to the conditions and the restrictions on issuance set forth in the resolution or resolutions adopted by the Board providing for the issue of any series of Preference Shares.
|
4.5
|
At the discretion of the Board, whether or not in connection with the issuance and sale of any shares or other securities of the Company, the Company may issue securities, contracts, warrants or other instruments evidencing any shares, option rights, securities having conversion or option rights, or obligations on such terms, conditions and other provisions as are fixed by the Board including, without limiting the generality of this authority, conditions that preclude or limit any person or persons owning or offering to acquire a specified number or percentage of the issued Common Shares, other shares, option rights, securities having conversion or option rights, or obligations of the Company or transferee of the person or persons from exercising, converting, transferring or receiving the shares, option rights, securities having conversion or option rights, or obligations.
|
4.6
|
All the rights attaching to a Treasury Share shall be suspended and shall not be exercised by the Company while it holds such Treasury Share and, except where required by the Act, all Treasury Shares shall be excluded from the calculation of any percentage or fraction of the share capital, or shares, of the Company.
|
5.
|
Adjustment to Voting Power
|
5.1
|
If the votes conferred by the Controlled Shares of any Person would otherwise cause such Person or any other Person to be treated as a 9.5% Shareholder with respect to any matter (including, without limitation, election of directors), the votes with respect to such matter conferred by the shares of such Person’s Controlled Group are hereby reduced (and shall be automatically reduced in the future) by whatever amount is necessary so that, after any such reduction, the votes conferred by the Controlled Shares of such Person shall not result in such Person or any other Person being treated as a 9.5% Shareholder with respect to the vote on such matter.
|
5.2
|
The reduction in votes pursuant to the preceding Bye-law shall be determined as follows:
|
(a)
|
Beginning with the Controlled Group of the Person whose Controlled Shares have the largest number of votes and continuing, as required, with the Controlled Group of each Person whose Controlled Shares successively have a smaller number of votes (after giving effect to prior reductions), the reduction in votes conferred by the shares of a Controlled Group shall be effected proportionately among all the shares of such Controlled Group in accordance with the relative voting power of such shares. Generally, the Board will effectuate the reduction
|
(b)
|
If there is a Person whose activities have been determined by the Board to have caused the application of subparagraph (a), after all required reductions in votes conferred on shares of Controlled Groups are effected pursuant to subparagraph (a), (i) the amount of any reduction in the votes of the shares of each Controlled Group effected by application of subparagraph (a) above shall be reallocated within such Controlled Group and conferred on the shares held directly by the Person whose actions have been determined by the Board to have caused the application of such subparagraph and (ii) the voting power of the shares held by each other Person holding shares in such Controlled Group shall be increased by such Person’s proportionate share of such reduction, in each case, to the extent that so doing does not cause any Person to be treated as a 9.5% Shareholder.
|
5.3
|
The Board shall implement the foregoing in the manner set forth in this Bye-law 5. In addition to any other provision of this Bye-law 5, any shares shall not carry rights to vote or shall have reduced voting rights to the extent that the Board reasonably determines, by the affirmative vote of a majority of the Directors, that it is reasonably necessary that such shares should not carry the right to vote or shall have reduced voting rights in order to avoid adverse tax consequences or materially adverse legal or regulatory treatment to the Company, any Subsidiary of the Company or any Person or its Affiliates; provided that the Board will use reasonable efforts to ensure equal treatment to similarly situated Persons to the extent possible under the circumstances and; provided further that the Board shall reallocate the amount of any reduction in vote in the manner described in Bye-law 5.2(b).
|
5.4
|
The Board shall have the authority to request from any Member such information as the Board may reasonably request for the purpose of determining whether any Member’s voting rights are to be adjusted. If any Member fails to respond to such a request, or submits incomplete or inaccurate information in response to such a request, the Board may in its sole discretion determine that such Member’s shares shall carry no voting rights, in which case such shares shall not carry any voting rights until otherwise determined by the Board in its absolute discretion.
|
6.
|
Certain Subsidiaries
|
6.1
|
Notwithstanding any other provision of these Bye-laws to the contrary, if the Company is required or entitled to vote at a general meeting of any subsidiary of the Company that is not a corporation organized under the laws of the United States or any state (or limited liability company organized under the laws of the United States or any state that is taxable as a corporation for United States Federal income tax purposes) or that is not treated as a pass-through vehicle or disregarded entity for United States federal income tax purposes (unless such disregarded entity owns, directly or indirectly, any subsidiary organized under the laws of a jurisdiction outside the United States that is treated as a corporation for United States federal income tax purposes) (together, the “Designated Companies”), the Board shall refer the subject matter of the vote (other than the removal and remuneration of auditors, the approval of financial statements and reports thereon, and the remuneration of
|
6.2
|
The Board in its discretion shall require that the Bye-laws or Articles of Association or similar organizational documents of each Designated Company shall contain provisions substantially similar to this Bye-law 6. The Company shall enter into agreements, as and when determined by the Board, with each such Designated Company, only if and to the extent reasonably necessary and permitted under applicable law, to effectuate or implement this Bye-law 6.
|
7.
|
Special Actions
|
7.1
|
Notwithstanding anything to the contrary in these Bye-laws, the Company shall not and shall cause TP Re not to subject to Bye-Law 7.2 without the prior and express written consent of each of Daniel S. Loeb, KEP TP Holdings, L.P. and KIA TP Holdings, L.P. (collectively, “Kelso”) and Pine Brook LVR, L.P. (“Pine Brook” and together with Kelso (the “Lead Investors”) and together with Daniel S. Loeb, the “Founders”) enter into any transaction with any (i) Affiliate of the Company, (ii) Member and/or director, officer, employee, and/or Affiliate of any Member, and/or (iii) director, officer, employee, and/or Affiliate of any of the foregoing.
|
7.2
|
Notwithstanding anything to the contrary in these Bye-Laws, the consent right of each Founder set forth in Bye-Law 7.1 shall survive an Initial Public Offering until such time as such Founder holds shares representing less than 25% of the shares held by such Founder on December 22, 2011.
|
8.
|
Calls on Shares
|
8.1
|
The Board may make such calls as it thinks fit upon the Members in respect of any moneys (whether in respect of nominal value or premium) unpaid on the shares allotted to or held by such Members (and not made payable at fixed times by the terms and conditions of issue) and, if a call is not paid on or before the day appointed for payment thereof, the Member may at the discretion of the Board be liable to pay the Company interest on the amount of such call at such rate as the Board may determine, from the date when such call was payable up to the actual date of payment. The Board may differentiate between the holders as to the amount of calls to be paid and the times of payment of such calls.
|
8.2
|
Any amount which, by the terms of allotment of a share, becomes payable upon issue or at any fixed date, whether on account of the nominal value of the share or by way of premium, shall for the purposes of these Bye-laws be deemed to be an amount on which a call has been duly made and payable on the date on which, by the terms of issue, the same becomes payable, and in case of non-payment all the relevant provisions of these Bye-laws as to payment of interest, costs and expenses, forfeiture or otherwise shall apply as if such amount had become payable by virtue of a duly made and notified call.
|
8.3
|
The joint holders of a share shall be jointly and severally liable to pay all calls and any interest, costs and expenses in respect thereof.
|
8.4
|
The Company may accept from any Member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up or become payable.
|
9.
|
Forfeiture of Shares
|
9.1
|
If any Member fails to pay, on the day appointed for payment thereof, any call pursuant to Bye-law 8 in respect of any share allotted to or held by such Member, the Board may, at any time thereafter during such time as the call remains unpaid, direct the Secretary to forward such Member a notice in writing in the form, or as near thereto as circumstances admit, of the following:
|
9.2
|
If the requirements of such notice are not complied with, any such share may at any time thereafter before the payment of such call and the interest due in respect thereof be forfeited by a resolution of the Board to that effect, and such share shall thereupon become the property of the Company and may be disposed of as the Board shall determine. Without limiting the generality of the foregoing, the disposal may take place by sale, repurchase, redemption or any other method of disposal permitted by and consistent with these Bye-laws and the Act.
|
9.3
|
A Member whose share or shares have been so forfeited shall, notwithstanding such forfeiture, be liable to pay to the Company all calls owing on such share or shares at the time of the forfeiture, together with all interest due thereon and any costs and expenses incurred by the Company in connection therewith.
|
9.4
|
The Board may accept the surrender of any shares which it is in a position to forfeit on such terms and conditions as may be agreed. Subject to those terms and conditions, a surrendered share shall be treated as if it had been forfeited.
|
10.
|
Share Certificates
|
10.1
|
Every Member shall be entitled to a certificate under the common seal (or a facsimile thereof) of the Company or bearing the signature (or a facsimile thereof) of a Director or the Secretary or a person expressly authorised to sign specifying the number and, where appropriate, the class of shares held by such Member and whether the same are fully paid up and, if not, specifying the amount paid on such shares. The Board may by resolution determine, either generally or in a particular case, that any or all signatures on certificates may be printed thereon or affixed by mechanical means.
|
10.2
|
The Company shall be under no obligation to complete and deliver a share certificate unless specifically called upon to do so by the person to whom the shares have been allotted.
|
10.3
|
If any share certificate shall be proved to the satisfaction of the Board to have been worn out, lost, mislaid, or destroyed the Board may cause a new certificate to be issued and request an indemnity for the lost certificate if it sees fit.
|
10.4
|
Notwithstanding any provisions of these Bye-laws:
|
(a)
|
the Board shall, subject always to the Act and any other applicable laws and regulations and the facilities and requirements of any relevant system concerned, have power to implement any arrangements it may, in its absolute discretion, think fit in relation to the evidencing of title to and transfer of uncertificated shares and to the extent such arrangements are so implemented, no provision of these Bye-laws shall apply or have effect to the extent that it is in any respect inconsistent with the holding or transfer of shares in uncertificated form; and
|
(b)
|
unless otherwise determined by the Board and as permitted by the Act and any other applicable laws and regulations including applicable rules of the New York Stock Exchange, no person shall be entitled to receive a certificate in respect of any share for so long as the title to that share is evidenced otherwise than by a certificate and for so long as transfers of that share may be made otherwise than by a written instrument.
|
11.
|
Fractional Shares
|
12.
|
Register of Members
|
12.1
|
The Board shall cause to be kept in one or more books a Register of Members and shall enter therein the particulars required by the Act.
|
12.2
|
The Register of Members shall be open to inspection without charge at the registered office of the Company on every business day, subject to such reasonable restrictions as the Board may impose, so that not less than two hours in each business day be allowed for inspection. The Register of Members may, after notice has been given in accordance with the Act, be closed for any time or times not exceeding in the whole thirty days in each year.
|
13.
|
Registered Holder Absolute Owner
|
14.
|
Transfer of Registered Shares
|
14.1
|
An instrument of transfer shall be in writing in the form of the following, or as near thereto as circumstances admit, or in such other form as the Board may accept:
|
14.2
|
Such instrument of transfer shall be signed by (or in the case of a party that is a corporation, on behalf of) the transferor and transferee, provided that, in the case of a fully paid share, the Board may accept the instrument signed by or on behalf of the transferor alone. The transferor shall be deemed to remain the holder of such share until the same has been registered as having been transferred to the transferee in the Register of Members.
|
14.3
|
The Board may refuse to recognise any instrument of transfer unless it is accompanied by the certificate in respect of the shares to which it relates and by such other evidence as the Board may reasonably require showing the right of the transferor to make the transfer.
|
14.4
|
The joint holders of any share may transfer such share to one or more of such joint holders, and the surviving holder or holders of any share previously held by them jointly with a deceased Member may transfer any such share to the executors or administrators of such deceased Member.
|
14.5
|
The Board may in its absolute discretion and without assigning any reason therefore refuse to register the transfer of a share which is not fully paid up. The Board shall refuse to register a transfer unless all applicable consents, authorisations and permissions of any governmental body or agency in Bermuda have been obtained. If the Board refuses to register a transfer of any share the Secretary shall, within three months after the date on which the transfer was lodged with the Company, send to the transferor and transferee notice of the refusal.
|
14.6
|
Shares may be transferred without a written instrument if transferred by an appointed agent or otherwise in accordance with the Act.
|
15.
|
Transmission of Registered Shares
|
15.1
|
In the case of the death of a Member, the survivor or survivors where the deceased Member was a joint holder, and the legal personal representatives of the deceased Member where the deceased Member was a sole holder, shall be the only persons recognised by the Company as having any title to the deceased Member's interest in the shares. Nothing herein contained shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by such deceased Member with other persons. Subject to the Act, for the purpose of this Bye-law, legal personal representative means the executor or administrator of a deceased Member or such other person as the Board may, in its absolute discretion, decide as being properly authorised to deal with the shares of a deceased Member.
|
15.2
|
Any person becoming entitled to a share in consequence of the death or bankruptcy of any Member may be registered as a Member upon such evidence as the Board may deem sufficient or may elect to nominate some
|
15.3
|
On the presentation of the foregoing materials to the Board, accompanied by such evidence as the Board may require to prove the title of the transferor, the transferee shall be registered as a Member. Notwithstanding the foregoing, the Board shall, in any case, have the same right to decline or suspend registration as it would have had in the case of a transfer of the share by that Member before such Member's death or bankruptcy, as the case may be.
|
15.4
|
Where two or more persons are registered as joint holders of a share or shares, then in the event of the death of any joint holder or holders the remaining joint holder or holders shall be absolutely entitled to such share or shares and the Company shall recognise no claim in respect of the estate of any joint holder except in the case of the last survivor of such joint holders.
|
16.
|
Power to Alter Capital
|
16.1
|
The Company may if authorised by resolution of the Members increase, divide, consolidate, subdivide, change the currency denomination of, diminish or otherwise alter or reduce its share capital in any manner permitted by the Act.
|
16.2
|
Where, on any alteration or reduction of share capital, fractions of shares or some other difficulty would arise, the Board may deal with or resolve the same in such manner as it thinks fit.
|
17.
|
Variation of Rights Attaching to Shares
|
18.
|
Dividends
|
18.1
|
The Board may, subject to these Bye-laws and in accordance with the Act, declare a dividend to be paid to the Members, in proportion to the number of shares held by them, and such dividend may be paid in cash or wholly or partly in specie in which case the Board may fix the value for distribution in specie of any assets. No unpaid dividend shall bear interest as against the Company.
|
18.2
|
The Board may fix any date as the record date for determining the Members entitled to receive any dividend.
|
18.3
|
The Company may pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
|
18.4
|
The Board may declare and make such other distributions (in cash or in specie) to the Members as may be lawfully made out of the assets of the Company. No unpaid distribution shall bear interest as against the Company.
|
19.
|
Power to Set Aside Profits
|
20.
|
Method of Payment
|
20.1
|
Any dividend, interest, or other moneys payable in cash in respect of the shares may be paid by cheque or draft sent through the post directed to the Member at such Member's address in the Register of Members, or to such person and to such address as the holder may in writing direct.
|
20.2
|
In the case of joint holders of shares, any dividend, interest or other moneys payable in cash in respect of shares may be paid by cheque or draft sent through the post directed to the address of the holder first named in the Register of Members, or to such person and to such address as the joint holders may in writing direct. If two or more persons are registered as joint holders of any shares any one can give an effectual receipt for any dividend paid in respect of such shares.
|
20.3
|
The Board may deduct from the dividends or distributions payable to any Member all moneys due from such Member to the Company on account of calls or otherwise.
|
20.4
|
The Company shall be entitled to cease sending dividend cheques and warrants by post or otherwise to a Member if those instruments have been returned undelivered to, or left uncashed by, that Member on at least two consecutive occasions or, following one such occasion, reasonable enquiries have failed to establish the
|
21.
|
Capitalisation
|
21.1
|
The Board may capitalise any amount for the time being standing to the credit of any of the Company's share premium or other reserve accounts or to the credit of the profit and loss account or otherwise available for distribution by applying such amount in paying up unissued shares to be allotted as fully paid bonus shares pro rata (except in connection with the conversion of shares of one class to shares of another class
)
to the Members.
|
21.2
|
The Board may capitalise any amount for the time being standing to the credit of a reserve account or amounts otherwise available for dividend or distribution by applying such amounts in paying up in full, partly or nil paid shares of those Members who would have been entitled to such amounts if they were distributed by way of dividend or distribution.
|
22.
|
Annual General Meetings
|
23.
|
Special General Meetings
|
24.
|
Requisitioned General Meetings
|
25.
|
Notice
|
25.1
|
At least 21 days' notice of an annual general meeting shall be given to each Member entitled to attend and vote thereat, stating the date, place and time which shall not be in the United States at which the meeting is to be held, that the election of Directors will take place thereat, and as far as practicable, the other business to be conducted at the meeting.
|
25.2
|
At least 21 days' notice of a special general meeting shall be given to each Member entitled to attend and vote thereat, stating the date, time, place which shall not be in the United States and the general nature of the business to be considered at the meeting.
|
25.3
|
The Board may fix any date as the record date for determining the Members entitled to receive notice of and to vote at any general meeting.
|
25.4
|
A general meeting shall, notwithstanding that it is called on shorter notice than that specified in these Bye-laws, be deemed to have been properly called if it is so agreed by (i) all the Members entitled to attend and
|
25.5
|
The accidental omission to give notice of a general meeting to, or the non-receipt of a notice of a general meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting.
|
26.
|
Giving Notice and Access
|
26.1
|
A notice may be given by the Company to a Member:
|
(a)
|
by delivering it to such Member in person, in which case the notice shall be deemed to have been served upon such delivery; or
|
(b)
|
by sending it by letter mail or courier to such Member's address in the Register of Members, in which case the notice shall be deemed to have been served seven days after the date on which it is deposited, with postage prepaid, in the mail; or
|
(c)
|
by sending it by courier to such Member’s address in the Register of Members, in which case the notice shall be deemed to have been served two days after the date on which it is deposited, with courier fees paid, with the courier service; or
|
(d)
|
by transmitting it by electronic means (including facsimile and electronic mail, but not telephone) in accordance with such directions as may be given by such Member to the Company for such purpose in which case the notice shall be deemed to have been served at the time that it would in the ordinary course be transmitted; or
|
(e)
|
by delivering it in accordance with the provisions of the Act pertaining to delivery of electronic records by publication on a website, in which case the notice shall be deemed to have been served at the time when the requirements of the Act in that regard have been met.
|
26.2
|
Any notice required to be given to a Member shall, with respect to any shares held jointly by two or more persons, be given to whichever of such persons is named first in the Register of Members and notice so given shall be sufficient notice to all the holders of such shares.
|
26.3
|
In proving service under paragraphs 26.1 (b), (c) and (d), it shall be sufficient to prove that the notice was properly addressed and prepaid, if posted or sent by courier, and the time when it was posted, deposited with the courier, or transmitted by electronic means.
|
27.
|
Notice of Nominations and Member Business
|
27.1
|
Annual General Meetings
|
(a)
|
Nominations of persons for election to the Board or the proposal of other business to be transacted by the Members may be made at an annual general meeting only (A) pursuant to the Company’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or (C) subject to any applicable law, by Members of record at the time of giving of notice as provided for in this Bye-law 27.1 and who comply with the notice procedures set forth in this Bye-law 27.1;
|
(b)
|
For nominations or other business to be properly brought before an annual general meeting by a Member pursuant to clause (C) of Bye-law 27.1(a), the Member must have given timely notice thereof in writing to the Secretary and any such proposed business must constitute a
|
(c)
|
A Member’s notice to the Secretary shall set forth (A) as to each person whom the Member proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Section 14(a) of the Securities Exchange Act of 1934 (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (B) as to any other business that the Member proposes to bring before the general meeting, a brief description of the business desired to be brought before the general meeting, the text of the proposal or business, the reasons for conducting such business at the general meeting and any material interest in such business of such Member and the beneficial owner, if any, on whose behalf the proposal is made, and (C) as to the Member giving the notice and the beneficial owner, if any, on whose behalf the proposal is made:
|
(i)
|
the name and address of such Member (as they appear in the Register of Members) and any such beneficial owner;
|
(ii)
|
the class or series and number of shares of the Company which are held of record or are beneficially owned by such Member and by any such beneficial owner;
|
(iii)
|
a description of any agreement, arrangement or understanding between or among such Member and any such beneficial owner, any of their respective affiliates or associates, and any other person or persons (including their names) in connection with the proposal of such nomination or other business;
|
(iv)
|
a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, share appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Member or any such beneficial owner or any such nominee with respect to the Company’s securities (a “Derivative Instrument”);
|
(v)
|
to the extent not disclosed pursuant to clause (iv) above, the principal amount of any indebtedness of the Company or any of its subsidiaries beneficially owned by such Member or by any such beneficial owner, together with the title of the instrument under which such indebtedness was issued and a description of any Derivative Instrument entered into by or on behalf of such Member or such beneficial owner relating to the value or payment of any indebtedness of the Company or any such Subsidiary;
|
(vi)
|
a representation that the Member is a holder of record of shares of the Company entitled to vote at such general meeting and intends to appear in person or by proxy at the general meeting to bring such nomination or other business before the general meeting; and
|
(vii)
|
a representation as to whether such Member or any such beneficial owner intends or is part of a group that intends to (i) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the Company’s outstanding shares required to approve or adopt the proposal or to elect each such nominee and/or (ii) otherwise to solicit proxies from Members in support of such proposal or nomination;
|
(d)
|
If requested by the Company, the information required under clauses (ii), (iii), (iv) and (v) of Bye-law 27.1(c) shall be supplemented by such Member and any such beneficial owner not later than 10 days after the record date for notice of the general meeting to disclose such information as of such record date;
|
(e)
|
Notwithstanding anything to the contrary, the notice requirements set forth herein with respect to the proposal of any business pursuant to this Bye-law 27.1 other than a nomination shall be deemed satisfied by a Member if such Member has submitted a proposal to the Company in compliance with Rule 14a-8 promulgated under the Securities and Exchange Act of 1934 and such Member’s proposal has been included in a proxy statement that has been prepared by the Company to solicit proxies for the general meeting.
|
27.2
|
Special General Meetings
|
(a)
|
Only such business shall be conducted at a special general meeting as shall have been brought before the general meeting in accordance with the Company’s notice of meeting pursuant to Bye-laws 25 and 26.
|
(b)
|
Nominations of persons for election to the Board at a special general meeting may be made (i) by or at the direction of the Board or (ii) provided that the Board has determined that Members may nominate persons for election to the Board at such general meeting, by any Member of the Company who is a Member of record at the time of giving of notice provided for in this Bye-law 27.2(b), who shall be entitled to vote at the general meeting and who complies with the notice procedures set forth in this Bye-law 27.
|
(c)
|
For nominations to be properly brought before a special general meeting by a Member pursuant to this Bye-law 27.2(b)(ii), the Member must have given timely notice thereof in writing to the Secretary. To be timely, a Member’s notice shall be delivered to or mailed and received at the registered office of the Company (A) not earlier than 120 days prior to the date of the special general meeting nor (B) later than the later of 90 days prior to the date of the special general meeting or the 10th day following the day on which public announcement of the date of the special general meeting was first made.
|
(d)
|
A Member’s notice to the Secretary, including any notice of requisition pursuant to Bye-law 24, shall comply with the notice requirements of Bye-law 27.1(c) and (d).
|
27.3
|
General
|
(a)
|
At the request of the Board, any person nominated by the Board for election as a director shall furnish to the Secretary the information that is required to be set forth in a Member’s notice of nomination pursuant to Bye-law 27.1(c).
|
(b)
|
No person shall be eligible to be nominated by a Member to serve as a director of the Company unless nominated in accordance with the procedures set forth in this Bye-law 27.
|
(c)
|
The chairman of the general meeting shall, if the facts warrant, determine and declare to the general meeting that a nomination was not made in accordance with the procedures prescribed by these Bye-laws or that business was not properly brought before the general meeting, and if he should so determine and declare, the defective nomination shall be disregarded or such business shall not be transacted, as the case may be.
|
(d)
|
Notwithstanding the foregoing provisions of this Bye-law 27, unless otherwise required by the Act, if the Member (or a qualified representative of the Member) does not appear at the annual or special general meeting to present a nomination or other proposed business, such nomination shall be disregarded or such proposed business shall not be transacted, as the case may be, notwithstanding that proxies in respect of such vote may have been received by the Company. For purposes of this Bye-law 27.3, to be considered a qualified representative of the Member, a person must be a duly authorized officer, manager or partner of such Member or must be authorized by a writing executed by such Member or an electronic transmission delivered by such Member to act for such Member as proxy at the general meeting and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the general meeting.
|
27.4
|
Without limiting the foregoing provisions of this Bye-law 27, a Member shall also comply with all applicable requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder with respect to the matters set forth in this Bye-law 27;
provided
, that any references in these Bye-laws to the Securities Exchange Act of 1934 or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Bye-law, and compliance with Bye-law 27.1 or 27.2 shall be the exclusive means for a Member to make nominations or submit other business (other than as provided in Bye-law 27.1(e)).
|
28.
|
Postponement or Cancellation of General Meeting
|
29.
|
Electronic Participation and Security in Meetings
|
29.1
|
Members may participate in any general meeting by such telephonic, electronic or other communication facilities or means as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting.
|
29.2
|
The Board may, and at any general meeting, the Chairman of such meeting may, make any arrangement and impose any requirement or restriction it or he considers appropriate to ensure the security of the general meeting including, without limitation, requirements for evidence of identity to be produced by those attending the
|
30.
|
Quorum at General Meetings
|
30.1
|
At any general meeting two or more persons present in person throughout the meeting and representing in person or by proxy in excess of 50% of the total issued voting shares in the Company throughout the meeting shall form a quorum for the transaction of business, provided, however that no Member may participate in any general meeting during which that Member (or, if any Member is an entity, its representative) is physically present in the United States.
|
30.2
|
If within half an hour from the time appointed for the meeting a quorum is not present, then, in the case of a meeting convened on a requisition, the meeting shall be deemed cancelled and, in any other case, the meeting shall stand adjourned to the same day one week later, at the same time and place (which shall not be in the United States) or to such other day, time or place (which shall not be in the United States) as the Secretary may determine. Unless the meeting is adjourned to a specific date, time and place (which shall not be in the United States) announced at the meeting being adjourned, fresh notice of the resumption of the meeting shall be given to each Member entitled to attend and vote thereat in accordance with these Bye-laws.
|
31.
|
Chairman to Preside at General Meetings
|
32.
|
Voting on Resolutions
|
32.1
|
Subject to the Act and these Bye-laws, any question proposed for the consideration of the Members at any general meeting shall be decided by the affirmative votes of a majority of the votes cast in accordance with these Bye-laws and in the case of an equality of votes the resolution shall fail.
|
32.2
|
No Member shall be entitled to vote at a general meeting unless such Member has paid all the calls on all shares held by such Member.
|
32.3
|
At any general meeting a resolution put to the vote of the meeting shall, in the first instance, be voted upon by a show of hands and, subject to any rights or restrictions for the time being lawfully attached to any class of shares and subject to these Bye-laws, every Member present in person and every person holding a valid proxy at such meeting shall be entitled to one vote and shall cast such vote by raising his hand.
|
32.4
|
In the event that a Member participates in a general meeting by telephone, electronic or other communication facilities or means, the chairman of the meeting shall direct the manner in which such Member may cast his vote on a show of hands.
|
32.5
|
At any general meeting if an amendment is proposed to any resolution under consideration and the chairman of the meeting rules on whether or not the proposed amendment is out of order, the proceedings on the substantive resolution shall not be invalidated by any error in such ruling.
|
32.6
|
At any general meeting a declaration by the chairman of the meeting that a question proposed for consideration has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to these Bye-laws, be conclusive evidence of that fact.
|
33.
|
Power to Demand a Vote on a Poll
|
33.1
|
Notwithstanding the foregoing, a poll may be demanded by any of the following persons:
|
(a)
|
the chairman of such meeting; or
|
(b)
|
at least three Members present in person or represented by proxy; or
|
(c)
|
any Member or Members present in person or represented by proxy and holding between them not less than one-tenth of the total voting rights of all the Members having the right to vote at such meeting; or
|
(d)
|
any Member or Members present in person or represented by proxy holding shares in the Company conferring the right to vote at such meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total amount paid up on all such shares conferring such right.
|
33.2
|
Where a poll is demanded, subject to any rights or restrictions for the time being lawfully attached to any class of shares, every person present at such meeting shall have one vote for each share of which such person is the holder or for which such person holds a proxy and such vote shall be counted by ballot as described herein, or in the case of a general meeting at which one or more Members are present by telephone, electronic or other communication facilities or means, in such manner as the chairman of the meeting may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded and shall replace any previous resolution upon the same matter which has been the subject of a show of hands. A person entitled to more than one vote need not use all his votes or cast all the votes he uses in the same way.
|
33.3
|
A poll demanded for the purpose of electing a chairman of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time and in such manner during such meeting as the chairman (or acting chairman) of the meeting may direct. Any business other than that upon which a poll has been demanded may be conducted pending the taking of the poll.
|
33.4
|
Where a vote is taken by poll, each person physically present and entitled to vote shall be furnished with a ballot paper on which such person shall record his vote in such manner as shall be determined at the meeting having regard to the nature of the question on which the vote is taken, and each ballot paper shall be signed or initialled or otherwise marked so as to identify the voter and the registered holder in the case of a proxy. Each person present by telephone, electronic or other communication facilities or means shall cast his vote in such manner as the chairman of the meeting shall direct. At the conclusion of the poll, the ballot papers and votes cast in accordance with such directions shall be examined and counted by a committee of not less than two Members or proxy holders appointed by the chairman of the meeting for the purpose and the result of the poll shall be declared by the chairman of the meeting.
|
34.
|
Voting by Joint Holders of Shares
|
35.
|
Instrument of Proxy
|
35.1
|
An instrument appointing a proxy shall be in writing in substantially the following form or such other form as the chairman of the meeting shall accept:
|
35.2
|
The instrument appointing a proxy must be received by the Company at the registered office or at such other place or in such manner as is specified in the notice convening the meeting or in any instrument of proxy sent out by the Company in relation to the meeting at which the person named in the instrument appointing a proxy proposes to vote, and an instrument appointing a proxy which is not received in the manner so prescribed shall be invalid.
|
35.3
|
A Member who is the holder of two or more shares may appoint more than one proxy to represent him and vote on his behalf in respect of different shares.
|
35.4
|
Subject to Bye-law 34.5, the decision of the chairman of any general meeting as to the validity of any appointment of a proxy shall be final.
|
35.5
|
Any Member may irrevocably appoint a proxy and in such case: (i) such appointment shall be irrevocable in accordance with the terms of the instrument of appointment; (ii) the Company shall be given notice of the appointment, such notice to include the name, address, telephone number and electronic mail address of the proxy, and the Company shall give to such proxy notice of all meetings of shareholders of the Company; (iii) such proxy shall be the only person entitled to vote the relevant Shares at any meeting at which such proxy is present; and (iv) the Company shall be obliged to recognise the proxy until such time as such proxy shall notify the Company in writing that the appointment of such proxy is no longer in force.
|
36.
|
Representation of Corporate Member
|
36.1
|
A corporation which is a Member may, by written instrument, authorise such person or persons as it thinks fit to act as its representative at any meeting and any person so authorised shall be entitled to exercise the same powers on behalf of the corporation which such person represents as that corporation could exercise if it were an individual Member, and that Member shall be deemed to be present in person at any such meeting attended by its authorised representative or representatives.
|
36.2
|
Notwithstanding the foregoing, the chairman of the meeting may accept such assurances as he thinks fit as to the right of any person to attend and vote at general meetings on behalf of a corporation which is a Member.
|
37.
|
Adjournment of General Meeting
|
37.1
|
The chairman of a general meeting at which quorum is present may, with the consent of the Members holding a majority of the voting rights of those Members present in person or by proxy (and shall if so directed by Members holding a majority of the voting rights of those Members present in person or by proxy) adjourn the meeting.
|
37.2
|
The chairman of a general meeting may may adjourn a meeting to another time and place without the consent or direction of the Members if it appears to him that:
|
(a)
|
it is likely to be impractical to hold or continue that meeting because of the number of Members wishing to attend who are not present; or
|
(b)
|
The unruly conduct of persons attending the meeting prevents, or is likely to prevent, the orderly continuation of the business of the meeting; or
|
(c)
|
An adjournment is otherwise necessary so that the business of the meeting may be properly conducted.
|
37.3
|
Unless the meeting is adjourned to a specific date, place and time announced at the meeting being adjourned, fresh notice of the date, place and time for the resumption of the adjourned meeting shall be given to each Member entitled to attend and vote thereat in accordance with these Bye-laws.
|
38.
|
Written Resolutions
|
38.1
|
Subject to these Bye-laws, anything which may be done by resolution of the Company in general meeting or by resolution of a meeting of any class of the Members may be done without a meeting by written resolution signed by or, in the case of a Member that is a corporation whether or not a company within the meaning of the Act, on behalf of all the Members who at the date of the resolution would be entitled to attend the meeting and vote on the resolution.
|
38.2
|
Notice of a written resolution shall be given, and a copy of the resolution shall be circulated, to all Members who would be entitled to attend a meeting and vote thereon. The accidental omission to give notice to, or the non-receipt of a notice by, any Member does not invalidate the passing of a resolution.
|
38.3
|
A written resolution is passed when it is signed by, or in the case of a Member that is a corporation, on behalf of, the Members who at the date that the notice is given represent such majority of votes as would be required if the resolution was voted on at a meeting of Members at which all Members entitled to attend and vote thereat were present and voting.
|
38.4
|
A resolution in writing may be signed in any number of counterparts.
|
38.5
|
A resolution in writing made in accordance with this Bye-law is as valid as if it had been passed by the Company in general meeting or by a meeting of the relevant class of Members, as the case may be, and any reference in any Bye-law to a meeting at which a resolution is passed or to Members voting in favour of a resolution shall be construed accordingly.
|
38.6
|
A resolution in writing made in accordance with this Bye-law shall constitute minutes for the purposes of the Act.
|
38.7
|
This Bye-law shall not apply to:
|
(a)
|
(a) a resolution passed to remove an Auditor from office before the expiration of his term of office; or
|
(b)
|
(b) a resolution passed for the purpose of removing a Director before the expiration of his term of office.
|
38.8
|
For the purposes of this Bye-law, the effective date of the resolution is the date when the resolution is signed by, or in the case of a Member that is a corporation, on behalf of, the last Member whose signature results in the necessary voting majority being achieved and any reference in any Bye-law to the date of passing of a resolution is, in relation to a resolution made in accordance with this Bye-law, a reference to such date.
|
38.9
|
This Bye-law 38 shall no longer apply or have effect from and after the Effective Date, and, from and after the Effective Date, no resolution of the Company may be adopted by written resolution.
|
39.
|
Directors Attendance at General Meetings
|
40.
|
Election of Directors
|
40.1
|
Only persons who are proposed or nominated in accordance with Bye-law 27 shall be eligible for election as Directors.
|
40.2
|
Where persons are validly proposed for re-election or election as a Director, the persons receiving the most votes (up to the number of Directors to be elected) shall be elected as Directors, and an absolute majority of the votes cast shall not be a prerequisite to the election of such Directors.
|
40.3
|
For so long as a Lead Investor holds Shares representing at least 25% of the total number of Shares held by such Lead Investor on December 22, 2011, such Lead Investor shall have the right to appoint one Class III director to the Board of Directors of the Company at each annual general meeting at which the term of such Lead Investor’s appointee expires.
|
40.4
|
At any general meeting the Members may authorise the Board to fill any vacancy in their number left unfilled at a general meeting.
|
41.
|
Number of Directors
|
42.
|
Term of Office of Directors
|
42.1
|
The Directors shall be classified with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, one class (“Class I”) whose initial term expires at the 2014 annual general meeting of the Members will be elected for a three year term, another class (“Class II”) whose initial term expires at the 2015 annual general meeting of the Members will be elected for a three year term, and another class (“Class III”) whose initial term expires at the 2016 annual general meeting of the Members will be elected for a three year term, with each class to hold office until its successors are elected and qualified.
|
42.2
|
At each
succeeding
annual general meeting
of the Members, the
,
successors
of
to
the class of
d
D
irectors whose term expires at
such
that annual general
meeting shall be elected
to hold office for a term expiring at the annual meeting of Members held in (i) with respect to the Class I directors, the third year following the year of their appointment, (ii) with respect to the Class II directors, the third year following the year of their appointment and (iii) with respect to the Class III directors, the third year following the year of their appointment
for a three year term. If the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any Director of any class elected to fill a vacancy shall hold office for a term that shall coincide with the remaining term of the other Directors of that class, but in no case shall a decrease in the number of Directors shorten the term of any Director then in office. A Director shall hold office until the annual general meeting for the year in which his term expires, subject to his office being vacated pursuant to Bye-law 45.1
.
|
43.
|
Alternate Directors; Board Observers
|
43.1
|
At any general meeting, the Members may elect a person or persons to act as a Director in the alternative to any one or more Directors or may authorise the Board to appoint such Alternate Directors.
|
43.2
|
Unless the Members otherwise resolve, any Director may appoint a person or persons to act as a Director in the alternative to himself by notice deposited with the Secretary. Any person so elected or appointed shall have all the rights and powers of the Director or Directors for whom such person is elected or appointed in the alternative provided that such person shall not be counted more than once in determining whether or not a quorum is present.
|
43.3
|
An Alternate Director shall be entitled to receive notice of all Board meetings and to attend and vote at any such meeting at which a Director for whom such Alternate Director was appointed in the alternative is not personally present and generally to perform at such meeting all the functions of such Director for whom such Alternate Director was appointed.
|
43.4
|
An Alternate Director shall cease to be such if the Director for whom he was appointed to act as a Director in the alternative ceases for any reason to be a Director, but he may be re-appointed by the Board as an alternate to the person appointed to fill the vacancy in accordance with these Bye-laws.
|
43.5
|
The Company shall permit one representative of each of Daniel S. Loeb, Kelso, Pine Brook and P RE Opportunities Ltd. (“PROL”) (but only for so long as Daniel S. Loeb, Kelso, Pine Brook or PROL, as applicable, hold Shares) to attend all meetings of the Board of Directors as observers, and shall provide such person with such notice and other information with respect to such meetings as are delivered to the directors of the Company. Notwithstanding the foregoing, the Company (i) may condition the right of any such person to attend meetings of the Board of Directors and receive notice and other information with respect to such meetings on the execution of a confidentiality agreement reasonably satisfactory to the Company, and (ii) may prevent such person from attending a meeting of the Board of Directors (or portion thereof) or receiving certain information with respect thereto if the Company believes, after consultation with counsel, that it is necessary to do so to ensure preservation of the attorney-client privilege.
|
44.
|
Removal of Directors
|
44.1
|
From the date of the adoption of these Bye-laws until the Effective Date, subject to any provision to the contrary in these Bye-laws, the Members holding a majority of the voting shares of the Company may, at any special general meeting convened and held in accordance with these Bye-laws, by the affirmative vote of all such Members, remove a Director, provided that the notice of any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and be served on such Director not less than 14 days before the meeting and at such meeting the Director shall be entitled to be heard on the motion for such Director's removal.
|
44.2
|
From the Effective Date, subject to any provision to the contrary in these Bye-laws, the Members holding a majority of the voting shares of the Company may, at any special general meeting convened and held in accordance with these Bye-laws, by the affirmative vote of all such Members, remove a Director only with cause, provided that the notice of any such meeting convened for the purpose of removing a Director shall contain a statement of the intention so to do and be served on such Director not less than 14 days before the meeting and at such meeting the Director shall be entitled to be heard on the motion for such Director's removal.
|
44.3
|
If a Director is removed from the Board under this Bye-law the Members may fill the vacancy at the meeting at which such Director is removed. In the absence of such election or appointment, the Board may fill the vacancy.
|
44.4
|
For the purposes of this Bye-law, “cause” shall mean a conviction for a criminal offence involving dishonesty or engaging in conduct which brings the Director or the Company into disrepute and which results in material financial detriment to the Company.
|
45.
|
Vacancy in the Office of Director
|
45.1
|
The office of Director shall be vacated if the Director:
|
(a)
|
is removed from office pursuant to these Bye-laws or is prohibited from being a Director by law;
|
(b)
|
is or becomes bankrupt, or makes any arrangement or composition with his creditors generally;
|
(c)
|
is or becomes of unsound mind or dies; or
|
(d)
|
resigns his office by notice to the Company.
|
45.2
|
The Members in general meeting or the Board shall have the power to appoint any person as a Director to fill a vacancy on the Board occurring as a result of the death, disability, disqualification or resignation of any Director
or as a result of an increase in the size of the Board
and to appoint an Alternate Director to any Director so appointed, provided that in the event the vacancy to be filled is for a Lead Investor’s appointee and such Lead Investor meets the qualifications set forth in Bye-Law 40.3 for its entitlement to appoint a Director, then such Lead Investor shall appoint the Director to fill such vacancy.
|
46.
|
Remuneration of Directors
|
47.
|
Defect in Appointment
|
48.
|
Directors to Manage Business
|
49.
|
Powers of the Board of Directors
|
(a)
|
appoint, suspend, or remove any manager, secretary, clerk, agent or employee of the Company and may fix their remuneration and determine their duties;
|
(b)
|
exercise all the powers of the Company to borrow money and to mortgage or charge or otherwise grant a security interest in its undertaking, property and uncalled capital, or any part thereof, and may issue debentures, debenture stock and other securities whether outright or as security for any debt, liability or obligation of the Company or any third party;
|
(c)
|
appoint one or more Directors to the office of managing director or chief executive office of the Company, who shall, subject to the control of the Board, supervise and administer all of the general business and affairs of the Company;
|
(d)
|
appoint a person to act as manager of the Company's day-to-day business and may entrust to and confer upon such manager such powers and duties as it deems appropriate for the transaction or conduct of such business;
|
(e)
|
by power of attorney, appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be an attorney of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board) and for such period and subject to such conditions as it may think fit and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions so vested in the attorney;
|
(f)
|
procure that the Company pays all expenses incurred in promoting and incorporating the Company;
|
(g)
|
delegate any of its powers (including the power to sub-delegate) to a committee of one or more persons appointed by the Board which may consist partly or entirely of non-Directors, provided that every such committee shall conform to such directions as the Board shall impose on them and provided further that the meetings and proceedings of any such committee shall be governed by the provisions of these Bye-laws regulating the meetings and proceedings of the Board, so far as the same are applicable and are not superseded by directions imposed by the Board;
|
(h)
|
delegate any of its powers (including the power to sub-delegate) to any person on such terms and in such manner as the Board may see fit;
|
(i)
|
present any petition and make any application in connection with the liquidation or reorganisation of the Company;
|
(j)
|
in connection with the issue of any share, pay such commission and brokerage as may be permitted by law; and
|
(k)
|
authorise any company, firm, person or body of persons to act on behalf of the Company for any specific purpose and in connection therewith to execute any deed, agreement, document or instrument on behalf of the Company.
|
50.
|
[
Intentionally Omitted
]
|
51.
|
Register of Directors and Officers
|
52.
|
Appointment of Officers
|
53.
|
Appointment of Secretary
|
54.
|
Duties of Officers
|
55.
|
Remuneration of Officers
|
56.
|
Conflicts of Interest
|
56.1
|
Any Director, or any Director's firm, partner or any company with whom any Director is associated, may act in any capacity for, be employed by or render services to the Company on such terms, including with respect to remuneration, as may be agreed between the parties. Nothing herein contained shall authorise a Director or Director's firm, partner or company to act as Auditor to the Company.
|
56.2
|
A Director who is directly or indirectly interested in a contract or proposed contract or arrangement with the Company shall declare the nature of such interest as required by the Act and such Director shall be required to recuse himself from any board meeting at which such contract or arrangement is to be considered.
|
56.3
|
Following a declaration being made pursuant to this Bye-law, a Director shall not vote in respect of any contract or proposed contract or arrangement in which such Director is interested, shall not be counted in the quorum for such meeting and shall be required to recuse himself from any discussion, provided that such restrictions shall not apply to the investment management agreement, dated December 22, 2011, by and between the Company, TP Re or any of their respective affiliates (including, without limitation, the Joint Venture and Investment Management Agreement but except as expressly set forth in such Joint Venture and Investment Management Agreement), and the Sponsor, or any of its affiliates, or any amendment, modifications or waivers thereof or any successor agreement thereto. For the avoidance of doubt, no Director shall be considered "interested" with respect to any transactions in which all the Members participate or are offered to participate.
|
57.
|
Indemnification and Exculpation of Directors and Officers
|
57.1
|
The Directors, Resident Representative, Secretary and other Officers (such term to include any person appointed to any committee by the Board) for the time being acting in relation to any of the affairs of the Company or any Subsidiary thereof and the liquidator or trustees (if any) for the time being acting in relation to any of the affairs of the Company or any Subsidiary thereof and every one of them, and their heirs, executors and administrators, shall be indemnified and secured harmless out of the assets of the Company from and against all actions, costs, charges, losses, damages and expenses which they or any of them, their heirs, executors or administrators, shall or may incur or sustain by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, or in their respective offices or trusts, and none of them shall be answerable for the acts, receipts, neglects or defaults of the others of them or for joining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for
|
57.2
|
The Company may purchase and maintain insurance for the benefit of any Director or Officer against any liability incurred by him under the Act in his capacity as a Director or Officer or indemnifying such Director or Officer in respect of any loss arising or liability attaching to him by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which the Director or Officer may be guilty in relation to the Company or any Subsidiary thereof.
|
57.3
|
The Company may advance moneys to a Director or Officer for the costs, charges and expenses incurred by the Director or Officer in defending any civil or criminal proceedings against him, on condition that the Director or Officer shall repay the advance if any allegation of fraud or dishonesty is proved against him.
|
58.
|
Board Meetings
|
59.
|
Notice of Board Meetings
|
60.
|
Electronic Participation in Meetings
|
61.
|
Quorum at Board Meetings
|
62.
|
Board to Continue in the Event of Vacancy
|
63.
|
Chairman to Preside
|
64.
|
Written Resolutions
|
65.
|
Validity of Prior Acts of the Board
|
66.
|
Minutes
|
(a)
|
of all elections and appointments of Officers;
|
(b)
|
of the names of the Directors present at each Board meeting and of any committee appointed by the Board; and
|
(c)
|
of all resolutions and proceedings of general meetings of the Members, Board meetings, meetings of managers and meetings of committees appointed by the Board.
|
67.
|
Place Where Corporate Records Kept
|
68.
|
Form and Use of Seal
|
68.1
|
The Company may adopt a seal in such form as the Board may determine. The Board may adopt one or more duplicate seals for use in or outside Bermuda.
|
68.2
|
A seal may, but need not, be affixed to any deed, instrument or document, and if the seal is to be affixed thereto, it shall be attested by the signature of (i) any Director, or (ii) any Officer, or (iii) the Secretary, or (iv) any person authorised by the Board for that purpose.
|
68.3
|
A Resident Representative may, but need not, affix the seal of the Company to certify the authenticity of any copies of documents.
|
69.
|
Records of Account
|
69.1
|
The Board shall cause to be kept proper records of account with respect to all transactions of the Company and in particular with respect to:
|
(a)
|
all amounts of money received and expended by the Company and the matters in respect of which the receipt and expenditure relates;
|
(b)
|
all sales and purchases of goods by the Company; and
|
(c)
|
all assets and liabilities of the Company.
|
69.2
|
Such records of account shall be kept at the registered office of the Company, or subject to the Act, at such other place as the Board thinks fit and shall be available for inspection by the Directors during normal business hours.
|
69.3
|
Such records of account shall be retained for a minimum period of five years from the date on which they are prepared.
|
70.
|
Financial Year End
|
71.
|
Annual Audit
|
72.
|
Appointment of Auditor
|
72.1
|
Subject to the Act, at the annual general meeting or at a subsequent special general meeting in each year, an independent representative of the Members shall be appointed by them as Auditor of the accounts of the Company.
|
72.2
|
The Auditor may be a Member but no Director, Officer or employee of the Company shall, during his continuance in office, be eligible to act as an Auditor of the Company.
|
73.
|
Remuneration of Auditor
|
73.1
|
The remuneration of an Auditor appointed by the Members shall be fixed by the Company in general meeting or in such manner as the Members may determine.
|
73.2
|
The remuneration of an Auditor appointed by the Board to fill a casual vacancy in accordance with these Bye-laws shall be fixed by the Board.
|
74.
|
Duties of Auditor
|
74.1
|
The financial statements provided for by these Bye-laws shall be audited by the Auditor in accordance with generally accepted auditing standards. The Auditor shall make a written report thereon in accordance with generally accepted auditing standards.
|
74.2
|
The generally accepted auditing standards referred to in this Bye-law may be those of a country or jurisdiction other than Bermuda or such other generally accepted auditing standards as may be provided for in the Act. If so, the financial statements and the report of the Auditor shall identify the generally accepted auditing standards used.
|
75.
|
Access to Records
|
76.
|
Financial Statements
|
76.1
|
Subject to any rights to waive laying of accounts pursuant to the Act, financial statements, as required by the Act, shall be laid before the Members in a general meeting annually. A resolution in writing made in accordance with Bye-law 37 receiving, accepting, adopting, approving or otherwise acknowledging financial statements shall be deemed to be the laying of such statements before the Members in general meeting.
|
77.
|
Distribution of Auditor’s Report
|
78.
|
Vacancy in the Office of Auditor
|
79.
|
Business Combinations
|
79.1
|
Any Business Combination with any Interested Shareholder within a period of three years following the time of the transaction in which the person became an Interested Shareholder must be approved by the Board and authorised at an annual or special general meeting, by the affirmative vote of at least 66.67% of the issued and outstanding voting shares of the Company that are not owned by the Interested Shareholder, unless:
|
(a)
|
prior to the time that the person became an Interested Shareholder, the Board approved either the Business Combination or the transaction which resulted in the person becoming an Interested Shareholder; or
|
(b)
|
upon consummation of the transaction which resulted in the person becoming an Interested Shareholder, the Interested Shareholder owned at least 85% of the number of issued and outstanding voting shares of the Company at the time the transaction commenced, excluding for the purposes of determining the number of shares issued and outstanding those shares
|
79.2
|
The restrictions contained in this Bye-law 79 shall not apply if:
|
(a)
|
a Member becomes an Interested Shareholder inadvertently and (i) as soon as practicable divests itself of ownership of sufficient shares so that the Member ceases to be an Interested Shareholder; and (ii) would not, at any time within the three-year period immediately prior to a Business Combination between the Company and such Member, have been an Interested Shareholder but for the inadvertent acquisition of ownership; or
|
(b)
|
the Business Combination is proposed prior to the consummation or abandonment of, and subsequent to the earlier of the public announcement or the notice required hereunder of, a proposed transaction which (i) constitutes one of the transactions described in the following sentence; (ii) is with or by a person who either was not an Interested Shareholder during the previous three years or who became an Interested Shareholder with the approval of the Board; and (iii) is approved or not opposed by a majority of the members of the Board then in office who were Directors prior to any person becoming an Interested Shareholder during the previous three years or were recommended for election or elected to succeed such Directors by resolution of the Board approved by a majority of such Directors. The proposed transactions referred to in the preceding sentence are limited to:
|
(i)
|
a merger, amalgamation or consolidation of the Company (except an amalgamation in respect of which, pursuant to the Act, no vote of the shareholders of the Company is required);
|
(ii)
|
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of the Company or of any entity directly or indirectly wholly-owned or majority-owned by the Company (other than to the Company or any entity directly or indirectly wholly-owned by the Company) having an aggregate market value equal to 50% or more of either the aggregate market value of all of the assets of the Company determined on a consolidated basis or the aggregate market value of all the issued and outstanding shares of the Company; or
|
(iii)
|
a proposed tender or exchange offer for 50% or more of the issued and outstanding voting shares of the Company.
|
(c)
|
For the purposes of this Bye-law 79.2 only, the term:
|
(i)
|
"affiliate" means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person;
|
(ii)
|
“associate," when used to indicate a relationship with any person, means: (i) any company, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more
|
(iii)
|
"Business Combination," when used in reference to the Company and any Interested Shareholder of the Company, means:
|
(a)
|
any merger, amalgamation or consolidation of the Company or any entity directly or indirectly wholly-owned or majority-owned by the Company, wherever incorporated, with (A) the Interested Shareholder or any of its affiliates, or (B) with any other company, partnership, unincorporated association or other entity if the merger, amalgamation or consolidation is caused by the Interested Shareholder;
|
(b)
|
any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a shareholder of the Company, to or with the Interested Shareholder, whether as part of a dissolution or otherwise, of assets of the Company or of any entity directly or indirectly wholly-owned or majority-owned by the Company which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Company determined on a consolidated basis or the aggregate market value of all the issued and outstanding shares of the Company;
|
(c)
|
any transaction which results in the issuance or transfer by the Company or by any entity directly or indirectly wholly-owned or majority-owned by the Company of any shares of the Company, or any share of such entity, to the Interested Shareholder, except: (A) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of the Company, or shares of any such entity, which securities were issued and outstanding prior to the time that the Interested Shareholder became such; (B) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of the Company, or shares of any such entity, which security is distributed, pro rata to all holders of a class or series of shares subsequent to the time the Interested Shareholder became such; (C) pursuant to an exchange offer by the Company to purchase shares made on the same terms to all holders of such shares; or (D) any issuance or transfer of shares by the Company; provided however, that in no case under items (B)-(D) of this subparagraph shall there be an increase in the Interested Shareholder's proportionate share of the any class or series of shares;
|
(d)
|
any transaction involving the Company or any entity directly or indirectly wholly-owned or majority-owned by the Company which has the effect, directly or indirectly, of increasing the proportionate share of any class or series of shares, or securities convertible into any class or series of shares of
|
(e)
|
any receipt by the Interested Shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of the Company), of any loans, advances, guarantees, pledges or other financial benefits (other than those expressly permitted in subparagraphs (a)-(d) of this paragraph) provided by or through the Company or any entity directly or indirectly wholly-owned or majority-owned by the Company;
|
(iv)
|
“control”, including the terms "controlling," "controlled by" and "under common control with," means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract or otherwise. A person who is the owner of 20% or more of the issued and outstanding voting shares of any company, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary; provided that notwithstanding the foregoing, such presumption of control shall not apply where such person holds voting shares, in good faith and not for the purpose of circumventing this provision, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity;
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(v)
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"Interested Shareholder" means any person (other than the Company and any entity directly or indirectly wholly-owned or majority-owned by the Company) that (i) is the owner of 15% or more of the issued and outstanding voting shares of the Company, (ii) is an affiliate or associate of the Company and was the owner of 15% or more of the issued and outstanding voting shares of the Company at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an Interested Shareholder or (iii) is an affiliate or associate of any person listed in (i) or (ii) above; provided, however, that the term "Interested Shareholder" shall not include any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of action taken solely by the Company unless such person referred to in this proviso acquires additional voting shares of the Company otherwise than as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an Interested Shareholder, the voting shares of the Company deemed to be issued and outstanding shall include voting shares deemed to be owned by the person through application of paragraph (viii) below, but shall not include any other unissued shares which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise;
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(vi)
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"person" means any individual, company, partnership, unincorporated association or other entity;
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(vii)
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"voting shares" means, with respect to any company, shares of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a company, any equity interest entitled to vote generally in the election of the governing body of such entity;
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(viii)
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"owner," including the terms "own" and "owned," when used with respect to any shares, means a person that individually or with or through any of its affiliates or associates:
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(a)
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beneficially owns such shares, directly or indirectly; or
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(b)
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has (A) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of shares tendered pursuant to a tender or exchange offer made by such person or any of such person's affiliates or associates until such tendered shares are accepted for purchase or exchange; or (B) the right to vote such shares pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any shares because of such person's right to vote such shares if the agreement, arrangement or understanding to vote such shares arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more persons; or
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(c)
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has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (B) of subparagraph (b) of this paragraph), or disposing of such shares with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such shares.
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79.3
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In respect of any Business Combination to which the restrictions contained in Bye-law 79.1 do not apply but which the Act requires to be approved by the Members, the necessary general meeting quorum and Members’ approval shall be as set out in Bye-laws 30 and 32 respectively.
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79.4
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The Board shall ensure that the bye-laws or other constitutional documents of each entity wholly-owned or majority-owned by the Company shall contain any provisions necessary to ensure that the intent of Bye-law 79.1, as it relates to the actions of such entities, is achieved.
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80.
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Winding-Up
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81.
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Changes to Bye-laws
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81.1
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No Bye-law may be rescinded, altered or amended and no new Bye-law may be made save in accordance with the Act and until the same has been approved by a resolution of the Board and by a resolution of the Members. In addition, no amendment to these Bye-laws which would have a material adverse effect on the rights of Kelso, Pine Brook or Daniel S. Loeb may be made without such party’s consent but only for so long as such party holds a number of Shares equal to at least 25% of the total number of Shares held by such party on December 22, 2011.
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81.2
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Bye-laws 32, 40, 42.1, 44 and 81 may not be rescinded, altered or amended and no new Bye-law may be made which would have the effect of rescinding, altering or amending the provisions of such Bye-laws, until the same has been approved by a resolution of the Board including the affirmative vote of not less than 66.67% of the Directors then in office and by a resolution of the Members including the affirmative vote of not less than 66.67% of the votes attaching to all shares in issue.
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